As a Houston wills lawyer, I can not state emphatically enough how important it is for all parents to create a comprehensive plan that will protect their children should the unthinkable occur.
But what happens if you are divorced and can not come to an agreement with your ex-spouse as to who should raise your kids if something happens to you? Should you go ahead and document your own guardianship wishes anyway? And just whose wishes would hold up in court?
In most cases, if your child’s biological parent is still living at the time of your death and you share custody, your children will be raised by the surviving parent, unless there is some clear reason why that should not happen.
There is nothing you can do about this unless you can prove that the child’s biological parent is unfit to raise your child and make a compelling case as to why your guardianship nominations should be honored under the circumstances.
Examples of this might include a severe drug addiction, criminal past or a history of abuse.
However, if this is unlikely, the next best thing to do is name guardians anyway so that your wishes for the care of your children will be known and taken into consideration should your ex-spouse also pass away before your kids reach the age of 18.
This is especially important in the event your ex-spouse did not legally document his or her guardianship wishes upon passing, as your wishes would then be given priority over, say, an unwilling step-parent (just think back to the Cinderella story for a chilling example of this).
Finally, if you are a single parent and have concerns not only about guardianship but also concerning your ex-spouse handling any assets you would leave to your kids if you passed away first, I encourage you to meet with a Houston wills lawyer right away so you can protect such funds in a trust. If you need help getting started with this, please feel free to give us a call at Your Legacy Legal Care and request a consultation:(281) 218-0880.
Kimberly Hegwood is the Managing Attorney of Your Legacy Legal Care, a Houston estate planning law firm. With more than 25 years of experience practicing law in Texas, she represents clients in a wide range of legal matters, including elder law, asset protection, estate planning, Medicaid crisis planning, probate, guardianship, and other estate planning practice areas.
Kimberly received her Juris Doctor from the South Texas College of Law and is a member of the State Bar of Texas.
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