Parents and Divorce: Protecting Your Kids in Case You Die

Protecting your children after your death is vital. Generally, if one parent dies, the other assumes full legal and physical custody without any issues. If both parents perish, a will can determine custody. What happens when a divorced parent passes away? 

Divorce can be messy. Not everyone has an amicable co-parenting situation. Sometimes divorced parents don’t share custody of children equally for safety reasons. Sometimes an absent parent is unable or unwilling to parent effectively. Sometimes an absent parent does not have the proper home or income to be a full time custodian. 

In the cases where an absent parent is not the ideal primary care giver, it may make sense to create documentation to legally support your custody wishes. It may also make sense to put fiscal parameters in place to support your children financially no matter who has physical custody. 

If you can’t support the idea of an ex having primary custody for valid reasons – not simply due to disliking them – you can make a guardian recommendation in your last will and testament. Be sure to list and provide evidence why you are naming the guardian and make sure your will is notarized and that the guardian has their own copy. If your decision is contested, your child may be appointed an attorney to represent them in a custody hearing. 

Often times a grandparent will be named as successor guardian. It is important to know that while grandparents are vital for the development and support of a child, there are no built-in grandparent rights. It is important that you take steps to name the people you desire to have access to your children in the event of your death and advocate for their relationship via your will. This will carry great weight with the court. 


You may also safeguard your assets and financial support for your children by naming a guardian or fiscal payee other than your ex-spouse to manage funds and make financial decisions on your behalf. Your attorney or financial planner will have information about how to set up a trust or other fiduciary protection. 

If you are divorced and do not have a positive relationship with your ex, it is important to safeguard your wishes and protect your child if you die. Take steps to secure their custody and financial stability so you can rest easy knowing they are well cared for.  

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