Divorce changes many things, but one of the biggest concerns for parents is what happens to their children if something unexpected occurs. Without the right legal protections in place, guardianship decisions may not align with your wishes. Even if you assume your ex-spouse would take custody, complications can arise, especially if new spouses, financial instability, or other family disputes come into play. Proper estate planning ensures that your children receive the care you want for them.

Why Guardianship Designations Matter

If a parent passes away, custody typically goes to the surviving parent. However, this isn’t automatic in every situation. A court will decide guardianship if:

• The other parent is deemed unfit due to addiction, criminal history, or other concerns.
• The surviving parent cannot care for the child due to illness or financial struggles.
• Both parents pass away or become incapacitated.

Without a legal guardianship designation, a judge will make the decision based on what they believe is best. This could mean assigning custody to an ex-spouse, a family member, or even a state-appointed guardian.

How to Choose the Right Guardian

Naming a guardian in an estate plan gives you control over who raises your children. Consider these factors:

• Values and Parenting Style: Does the person share similar beliefs and parenting methods?
• Stability: Do they have a steady income, a good home environment, and the ability to provide for your child?
• Relationship with Your Child: Is your child comfortable with them?
• Willingness: Have you discussed guardianship with them, and are they willing to take on the responsibility?

If the other parent is not the best option, a court will review your wishes and consider the designated guardian before making a decision.

How to Legally Name a Guardian

To ensure your wishes are followed, legal documents must clearly outline your chosen guardian. Steps to take include:

1. Update Your Will

Your will should name a guardian for minor children. Without this designation, a judge will decide based on state laws.

2. Consider a Standby Guardianship

Some states allow standby guardianship, which names a temporary guardian if you become incapacitated. This helps prevent legal battles while a permanent decision is made.

3. Set Up a Trust for Financial Support

If you pass away, a guardian may need financial support to raise your children. A trust allows you to:

• Control how and when money is used for your child’s care.
• Prevent an ex-spouse from misusing funds.
• Name a trustee to manage assets separately from the guardian.

4. Update Beneficiary Designations

Life insurance policies, retirement accounts, and other assets may list a former spouse as a beneficiary. Updating these ensures the right people receive financial support for your child’s care.

What Happens If You Don’t Plan?

Without a legal guardianship plan, custody decisions are left to the courts. An ex-spouse may automatically gain custody, even if they are unfit. If both parents pass away without a designated guardian, family members may argue over who should take responsibility. In extreme cases, children may enter the foster system.

Take Action Now

• Legally designate a guardian in your will.
• Set up a trust to provide financial security.
• Update beneficiary designations to reflect your wishes.
• Discuss guardianship with the person you choose to ensure they are prepared.