A House Divided ‐ When You Can’t Agree On Guardianship of Your Minor Children

Becky Cholewka: Hey parents, out there, who have minor children, I have a really important tip for you, for your estate plan. Please make sure that you and your spouse create wills, and talk about who is going to raise the children if something should happen to you and the other parent.

In Arizona, the only place you where you can name someone to raise your children is in a will. It can’t just be the Christmas card that you want to send to your sister one year, saying, “Hey, will you please do this for us if we die?” It needs to be written in your will.

If one spouse has something written different than the other spouse, and you both die in a car accident at the same time, now we’re going to have litigation. The court is going to look at two different wills from two different parents, and it’s not going to be consistent.

Here’s some things to think about when you’re having that conversation. It’s really difficult when you’re deciding who to leave your children to. I have a lot of clients, actually, who are at an impasse where one may want it to go with wife’s children, and then one may say, “No, I really want it to go to our friends.” There’s a disagreement over who should raise the kids.

Don’t let that prevent you from doing your plan. I’ve even gotten creative enough with clients that say, “Hey, why don’t we create something like this. A document that says if we die in an even‑year, this is what’s going to happen, and if we die in an odd‑year, this is what’s going to happen.”

That way, at least there is still something in writing, and the parents still have a 50/50 shot of having their wishes be followed. That is much better than having the court set up litigation to have any family member who wants to fight over these kids, come in and fight. Those are not fun litigations. They’re expensive. They are emotionally compromising.

There’s even an attorney I know, in Pennsylvania, who had that same scenario happen because her clients failed to create their will, just because they couldn’t agree on who would raise their son. Their little 10‑year‑old boy was actually throwing up in court the day the judge was going to rule on who was going to raise him.

It is obviously a difficult thing for a child to lose their parents. Don’t make it more complicated for them, for there to be any question about who is going to raise them if that awful scenario happens. Make sure you’re taking that responsibility seriously, and that you are executing your wills so that scenario doesn’t happen.

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