Does My Ex Get Custody of Our Child if I Die?

I was recently asked whether a parent could provide in her will for who would take care of her child if that parent died. She was concerned that the child’s father was not up to adequately caring for the child. I had to let her know despite any provisions in a will, the other parent would normally be the next in line custodian of the child if one parent passed away.

Because a child is not property, provisions in a will are not determinative of where a child will be placed. I am really not aware of any way to determine in advance who will take care of a child if one parent dies. At the same time, the will provision which nominates a caretaker other than the remaining parent might at least be considered by a court that has to make a determination as to the child’s residential arrangements.

After the parent’s death, if there is someone close who believes the other parent is not a fit custodian for the child, that person can file a third party custody action with the court to have the court determine whether the child should reside with the parent or the third party. Some language in the deceased parent’s will expressing a desire for that person to care for the child might help support that person’s case. If the child has been living with the third party prior to filing the action, that also helps the case.

Note that this is separate from leaving directions in your will for having someone appointed as the guardian for the child in the event of your death. Normally such provisions would only apply if both the child’s parents were deceased. Talk to an estate planning attorney for more details.

If you are concerned about having someone other than your ex be the custodian your child after your death, first, talk to that person in advance to let them know that is what you would like and to make sure they are willing. Then talk to your estate planning attorney about leaving some documentation of that desire, in your will or otherwise. Make sure you let the person know that they will need to bring a court action asking to be named as the custodian of the child. Finally, if there are reasons why the other parent is not fit, make sure those reasons are documented in the current parenting plan (many people leave those factors out of the parenting plan to make it more acceptable to the other parent). If the parenting plan makes it appear that there are no reasons why the child is not OK with the other parent, that could be a strong factor in that parent’s favor in any future litigation with a third party.