What happens if XH and I have different guardians on our wills?

[minkajane]

What would happen if XH and I had different guardians named in our wills? I'm about to change my will to say that if I die, DS will go to his dad, if XH and I both die, he'll go to DH, and if all three of us die, he'll go to a mutual friend of the family that's been like a grandma to DS. XH's will is from before the divorce and says that if we die, DS goes to his dad and stepmom, who I do NOT want to get DS.

I know it's a long shot, but what would happen if all of us died? Would DS get to choose? He's old enough to at least give an opinion. Or would a social worker decide or something?

[simplemama32]

I asked a lawyer a similar question recently. My understanding (and I am totally not a legal expert!!) is that there would be a very good chance of a judge making the final decision if you both have wills that specify different guardians.

I would consult a lawyer on this one, because it's not something you want to leave up to chance. It seems like the best scenario would be for you and your XH to agree on the same guardian, but believe me, I understand that's not always possible!

Worst case situation...you and X can't agree, a judge would make the decision, etc....for my own peace of mind, I would include a very thorough letter with my will, stating my case (not only why I want this person as a guardian, but why he or she would be the best choice, financially/emotionally for the child, and why I DON'T want this other person).

I would think whoever you choose as guardian would then also need to update their will to state who your child would go to if something happened to them. But again, I would definitely consult a lawyer about it.

[Irishmommy]

Wouldn't it be in order of who dies first? If you die first, ds goes to his dad, who, if he dies, his will takes precedence, and ds goes to his grandparents. If x dies first, you get ds, then if you die, your dh gets him.

[RollerCoasterMama]

Yes to the PP's advice. But the thing to remember is that it's a long shot. When you're married, the chances that you and your XH would die at the same time are much higher than when you're apart. You're not too likely to be taking trips together and have an accident.

So the scenarios are:
1. You die and your X is alive = child goes to X. Then if he died = child goes to his choice of guardian. (Your preference of back-up guardian doesn't play in any more. Though if he didn't have one, or his choice wasn't available, they might look at your will. I don't think it would be binding in any way though.)

2. X died and you are alive = child is 100% in your care. Then if you died = child goes to your choice of guardian.

3. You and X die AT THE SAME TIME = with different choices in your will, it would likely play out like PP mentioned. A judge would keep a child's preference in mind if they were old enough to have one.

Scenario #3 is pretty unlikely unless you travel together a lot.

Does this make sense?

[NolaRiordan]

I set up a trust and will after my divorce was final. So I went through a lot of these decisions. My sister is the executor of the trust so no matter who had custody of the kids after I was dead my sister has control of all the money from my side and she would dole it out according to the guidelines I set out. Also, I wrote up a document and had it notarized that if I was dead and my XH had full custody of the kids I would want them to have liberal visitation with my side of the family-- at a minimum every other Christmas and 4-6 weeks in the summer. My lawyer said a judge would be likely to grant the visitation since it was documented. My lawyer did say that a court is going to go with what's documented if it comes down to that. In my case I don't believe my X has a will (we never did when we were married). So if we were both dead and I had documented who I wanted the kids to go to and he didn't then the judge would be likely to go with my will.

[soso-lynn]

I guess it would depend on who has legal custody. If it's 50/50 and you died at the same time, then it might be decided by a judge (or by the people named in the will if they can agree).

[recremaicila]

Though we aren't on the same page about it, I'm almost positive X has nothing in writing or a will.... so I guess it would be my choice. It's a relative on my side though, so I don't know if X would really still be OK with it but too bad, either way.

Very much doubt we will die together. I don't get in a car with him driving, anymore.

Slightly OT but when I asked this person to become my firstborn child's guardian, he thought for a moment and then he said "OK, I'll do it. ~~~ But drive carefully."

[papayapetunia]

This is what I do for a living. Although, maybe not in your state, so consider my answer to be general.

In all cases, the court has to approve a guardian. It is not automatic just because the parents have named someone. It is very persuasive, but there's always the chance that the judge will find that it would not be in the child's best interest to go with a particular person.

A pp mentioned 3 different scenarios above, and for the most part they are correct. If you died, then 3 years later your X died, the court probably wouldn't even look at your nomination at that point.

What you could do is execute a document that explains why particular people are not suitable guardian choices. You could let your guardian choice know where to find that document if it's ever needed.

But, as a pp mentioned, you can also just kind of take the chance that both of you won't die before your son is 18. And when he's 14 or so (depends on the state), he'll have a say in where he goes.

[recremaicila]

Originally Posted by papayapetunia

This is what I do for a living. Although, maybe not in your state, so consider my answer to be general.

In all cases, the court has to approve a guardian. It is not automatic just because the parents have named someone. It is very persuasive, but there's always the chance that the judge will find that it would not be in the child's best interest to go with a particular person.

A pp mentioned 3 different scenarios above, and for the most part they are correct. If you died, then 3 years later your X died, the court probably wouldn't even look at your nomination at that point.

What you could do is execute a document that explains why particular people are not suitable guardian choices. You could let your guardian choice know where to find that document if it's ever needed.

But, as a pp mentioned, you can also just kind of take the chance that both of you won't die before your son is 18. And when he's 14 or so (depends on the state), he'll have a say in where he goes.

I didn't realize the court might have to approve that... in my case, it's part of (although I think not actually part of, but an addendum to) the will I made a few years back. Only other person I know of who's seen it would be my former attorney & perhaps his assistant.... and here I thought I had taken care of this issue.

Oh well! Back to driving carefully!

[Goodmom2008]

One way to make sure that your will trumps your ex's is that if he dies first, your husband legally adopts your ds. He would then be the legal father. And would get custody should you die.