Should you Designate a Guardian in your Divorce Agreement?

Many divorcing parents put their estate planning issues on the back burner as part of their post-divorce “to do” list. Divorcing parents with minor children or children with special needs, however, may wish to include a guardian nomination provision within their divorce agreement. Guardian nomination provisions are not required by the Court as part of the divorce agreement, and are therefore seldom seen, but having the conversation prior to the divorce and memorializing the couple’s agreed-upon wishes is an easy way to protect the children from a potential nightmare down the road.

Most divorcing couples are primarily focused on the immediate issue of transforming a single family unit into separate lives: division of assets and liabilities, transitioning to two households, and creating the parenting plan. These issues contemplate the parents living apart, with the issue of the death of one parent arising primarily in the context of a triggering event for the termination of financial support.  The care of the children in the event of the death of both parents is usually not part of the typical divorce discussion.  In out-of-Court divorce processes such as Mediation or Collaborative Law Practice, these types of additional discussions are encouraged.

So what happens to the children if both divorced parents die?  As with an intact family, the parents’ relatives would probably go searching for a Last Will and Testament to see what the guardian designations are.  With a married couple, whose estate planning was likely done together, the guardian nominations would be the same in both Wills.

For divorced parents, who each have their estate plans prepared separately post-divorce, the list of guardians in each Will may not overlap.  Divorced parents frequently nominate guardians only from his or her own side of the family.  There may be little or no discussion with the ex-spouse about who should raise the children.  Differing guardian nominations can lead to a contested guardianship, including litigation, lawyer fees, and the time and expense associated with a contested Court process.  Worst of all, after the child has lost both parents, the child's relatives are at war with each other.  Their relationships may be irretrievably destroyed, and if no temporary guardianship is allowed by the Court, the child may remain in DCF custody and placed in a foster home pending the outcome of the guardianship case.

While this worst case scenario may not occur in every case, the potential for it is there if divorcing parents do not take the time to jointly consider who will raise their children if they are both deceased (or otherwise unavailable).  Adding a clause to the divorce agreement to nominate guardians would help avoid the possibility of a contested guardianship.

Whether the divorce agreement includes a list of specific names or merely states the parents will confer post-divorce to agree on the nominees, the type of guardian nomination provision is far less important than the fact that there is one at all, demonstrating that the parents have contemplated the options for who will raise their children in the event they are not available to do it themselves.

Choosing Guardians for Minor Children Part 3: In the Context of Divorce

Sometimes my estate planning clients are divorced with minor children and are not on friendly terms with their former spouses. These are four frequently-asked questions about choosing guardians which arise in this context: “Do I have to name my former spouse as a guardian?” “Can my new spouse be appointed guardian?” “What if I have a restraining order against my former spouse?” “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?” Here are some of the initial issues we discuss relating to these questions.

1. “Do I have to name my former spouse as a guardian?”

In the event of the death of a custodial parent, the surviving former spouse would automatically become the sole custodial parent, regardless of whether the former spouse is nominated as a guardian. The exception to this rule is if the former spouse is deceased, incarcerated, determined legally unfit, or if the former spouse’s parental rights were otherwise terminated or voluntarily relinquished. The surviving parent is just that, a parent, and while being a parent encompasses the rights and responsibilities that a guardian has, the surviving parent would be known as the minor child’s parent, and not as a guardian.

This does not mean that a client cannot or should not include guardian nominations in his or her Will. The language of the guardian nominations can be tailored to recognize the position of the former spouse within the progression of custodianship of the minor children, and can add contingent guardian nominees in the event the former spouse is or becomes unable or unwilling to assume custody and care of the minor children.


2. “Can my new spouse be guardian?”

The former spouse’s parental rights would supersede a guardian nomination of a client's new spouse, even if the children’s primary residence is with the client and new spouse. This means that the former spouse would automatically become the custodial parent regardless of whether he or she is nominated as a guardian. If the former spouse is deceased or found unfit or voluntarily relinquished his or her parental rights, the Court can then look to other guardian nominations. In these circumstances, it is possible that a new spouse might be named guardian, but not because the new spouse has any inherent right to assume custodianship of the children.


3. “What if I have a restraining order against my former spouse?”

The existence of a restraining order or abuse prevention order does not automatically preclude the former spouse from becoming the sole custodial parent after a client’s death. It will depend on several factors, including whether the restraining order or abuse prevention order includes provisions regarding the minor children, and the status of the former spouse’s parental rights.


4. “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?”

It depends. Without any estate plan in place, if a former spouse becomes the surviving custodian of a client’s minor children and the client did not remarry, there is a good chance the former spouse will have access to the client’s estate assets which are left to the minor children. If this issue is a concern, it is prudent to establish an estate plan that will ensure that the estate assets are used in the desired manner and managed and distributed by a trusted individual. Some clients choose to establish trusts for the benefit of their minor children just for this purpose.

These short responses are meant to provide initial discussion to some of the questions that frequently arise regarding nominating guardians in the context of divorce. Every client’s family situation is unique and warrants individual analysis and planning for that specific estate.

Choosing Guardians for Minor Children Part 2: Factors to Consider

There are a host of factors that might be considered in choosing guardians for a minor child.  Not all of the factors and questions raised below will apply to all families or be given the same weight, but they are mentioned as a means to provide some ideas and a starting point to think about what is important for each child when deciding who should be nominated as guardians.


1.  Geographical Considerations

If there would not be the possibility of a nominated guardian moving into the child's home, then the guardian's location of residence may be something to consider.  The level of relocation difficulty will depend to some degree on the age of the child, since infants, toddlers, and elementary school children may be more "portable," whereas high schoolers may feel more interwoven into the fabric of their friends, school, extra-curriculars and community, and less enthusiastic about starting over elsewhere.  Also, does the child receive certain accommodations for a learning disability or other special needs from the current school system?  Would these or comparable accommodations be available in the guardian's community?

Relocating can be more of a challenge if the nominated guardian lives out of state or even in another country.  Does the child understand or speak the predominant language of the country?  Where does the guardian live in relation to the child's other relatives?  Would the child be able to maintain meaningful relationships with his or her other relatives from the guardian's location?  If there will also be a trustee of a trust for the benefit of the child, is it important in the particular circumstances for the guardian and trustee to know each other or to live in the same community/state/country?

For a family with a large number of children, it may not be possible for any potential guardian to house four, five, six or more children at their location.  While not ideal, sometimes siblings might need to be split up into more than one household.  If this situation occurs, then how close do the nominated guardians live to each other?  Do they know each other?  How able and willing would they be to support the siblings in spending time with each other?


2.  Physical Considerations

Would the nominated guardian's household be able to accommodate taking on the child?  If the guardian needed an additional bedroom, would it be possible for the guardian to use existing space or would the guardian need to consider moving to a larger home?  Does the child have any physical limitations or special needs that would require specific accommodation, such as a wheelchair ramp? Would the child need a bedroom on the entry level floor?  If there are financial resources available for the benefit of the child, it might be possible to partially or fully fund an access ramp, conversion of a room to a bedroom, or an addition to the home.  However, this would probably not be possible if the guardian lives in an apartment, condominium,  town house, or duplex (semi-detached), where there would be restrictions or prohibitions on adding to or changing the building structure.

Would the child be bringing the family pets with him or her, and does the guardian have an allergy to the pets?  Are pets even allowed at the guardian's residence?  Or in the reverse situation, does the child have an allergy to the guardian's pets?  Would the guardian be able to care for the child if the child has specific medical conditions, like juvenile diabetes, asthma, or a diagnosis along the Autism spectrum disorder?  Is the child or the guardian a vegetarian or vegan, or does one maintain a Kosher household or have other specific food restrictions?

Are there other children in the guardian's household?  How similar or disparate are the guardian's children from the child in age?  How welcoming or accepting might the guardian's children be to the child?


3.  Developmental Considerations

Nominated guardians should be reviewed every few years because different individuals may make better guardians for the child depending on the child's developmental stage.  Some guardians might be perfect for infants and toddlers, while others might not have the same affinity or availability for younger children.  What is the nature of the values in the guardian's home?  Are they similar to the parents' values?  Would there be religious upbringing?  What kind of involvement would the parents and guardian anticipate the child having in the religious community?  With the child's loss of his or her parents, would the guardian be able to provide the emotional support the child will need?

There may also be changes in the guardian's life that might make the guardian a better or lesser candidate.  Since nominated, has the guardian married?  Divorced?  Separated?  If the guardian has recently divorced, he or she may not be financially or emotionally positioned to assume responsibility for the child.  Does the guardian have his or her own children with special needs?  Has the guardian remarried such that it is a blended family where the guardian's spouse's own children will need to live in the household on a regular basis?


4.  Other Considerations

Is there great financial disparity between the child's family and the guardian's family?  If the guardian's family has significantly lesser means, will this cause hostility or resentment?  What if the child has financial resources available to send him or her to private school but this is not a possibility for the guardian's children?  Is it a situation where the child's parents attended college and so they expect the child to also attend college, but the guardian and the guardian's family do not have the same expectations for their own children?  Or the reverse, if there are not enough resources from the parents to pay for the child's college education, is the guardian expected to help pay for this?

If there are special desires the parents have for the child, such as sending the child to a particular overnight summer camp, or to annual family reunions with the child's family in another state, are these activities or events that the guardian will be able and willing to support?



All of these considerations are just that, things to consider.  No guardian will be able to exactly replace the home and parents the child lost, so the key is to choose the guardian who at present and for the next few years would be available and willing to become the child's caretaker as best possible, taking into account the child's needs, the parents' values and wishes, and the situations of the nominated guardians.

Choosing Guardians for Minor Children Part 1: How and When to Nominate

I am often contacted by first-time parents looking to set up an estate plan who have not yet considered or nominated legal guardians for their minor children.  These are some of the common questions these clients have.


1.  "What is the guardian responsible for?"

The guardian is responsible for providing caregiving and the legal responsibilities for the minor child.  This usually means the child will go to live with the guardian at the guardian's home, although I have had clients who make arrangements and provisions to allow the guardian to move in with the child so the child will have as little disruption as possible.  The guardian is responsible for ensuring that the child's medical, educational, and general well-being and developmental needs are taken care of.

The guardian is not necessarily responsible for managing any assets that may have been left for the benefit of the child.  If there are assets that have been left in trust for the benefit of the child, the trustee will be responsible for managing and distributing assets for the child.  In other circumstances, a conservator may be appointed for the child, whose sole role is to manage and distribute assets for the benefit of the child.  Both the guardian and conservator are Court-appointed positions which are overseen by the Court.  It is possible that the guardian and trustee, or guardian and conservator, may be the same individual, but not necessarily.


2.  "What happens if I die and do NOT nominate any guardians?"

The answer to this question depends on the status of the remaining family structure.  If the parents are married and one parent survives, the surviving parent automatically retains custodianship of the children.  This is also true for unmarried parents, as long as the surviving parent was the biological, adoptive, or adjudicated parent of the child.  For both married and unmarried parents, the surviving parent must also not have been found legally unfit or have some other legal impediment encumbering his or her ability to parent, such as incarceration or an abuse prevention order to protect the child.

If both parents are deceased, the minor child may have other relatives or close family friends who petition the Court to be appointed guardian.  If no one steps forward, the Department of Children and Families will step in, at least temporarily until a guardian is appointed by the Court, and in the event that no guardian is approved by the Court, the child may be placed in foster care.


3.  "How can I nominate guardians and how many should I nominate?"

The nomination of guardians is typically included in a Last Will and Testament, but could also be its own document.  I usually include the nomination in my clients' Wills.

For the number of guardians, in the event that neither parent survives, I usually recommend three alternates, which can be individuals or couples.  I recommend that my clients speak with the chosen nominated guardians to have a discussion about this role, and to obtain permission to include them in the list.  Sometimes clients only have one or two alternates; some clients have five or more.  While it may be extremely unlikely that so many alternate nominees are necessary, it provides peace of mind to the clients that they have done everything they could to ensure that in their children will be in good hands even if they are not there to take care of them themselves.


4.  "Should I ever change the nominated guardians?"

This is always a possibility.  I recommend that clients review their estate plans at least every 3-4 years, or sooner if there have been significant changes in the tax laws, the value of their assets, or a major life event, such as a marriage of birth of a child or grandchild.  The child who may be in need of a guardian is constantly growing and changing, and similarly the lives, parenting skills, and availability of the nominated guardians will also constantly change.

There are many factors to consider in choosing guardians, explored in more detail in Choosing Guardians for Minor Children Part 2, and these should be considered and reconsidered at each developmental stage of the child, or more frequently if the circumstances of the child and/or nominated guardians so warrant.

Can an individual under a guardianship marry?

Can an individual under a guardianship marry? A prior column focused on some of the different life situations that translate into different definitions of legal intent in the application of certain actions. The understanding is that legal intent is defined differently in different situations and in different states. The question raised in this column regards a situation when a person, usually referred to in law as a “ward,” who has a legal guardian, wants to get married or does get married.

Guardianships are established for different reasons and the individuals under guardianship or wards, have varied cognitive abilities. There is no blanket rule for all wards that allows or prohibits marriage. For each ward, the answer to this question depends on the reason for the guardianship, the extent of the guardianship and the particular individual’s mental capacity. For purposes of this discussion, let’s assume that the guardianships are of both the person and the property of the ward.

If the ward is subject to the guardianship merely because he or she is a minor, then the minor can petition the court for leave to marry. If the court allows the petition, the minor Ward can then legally marry despite being subject to the guardianship. This court procedure would apply the same way to any other minor wishing to marry who is not subject to a guardianship.

If the court grants the minor ward’s petition, then once the ward marries, the guardian would no longer have guardianship of the ward’s person, (i.e. custody of the ward or oversight of the ward’s education). However, the guardian would still have guardianship over the minor ward’s property, regardless of the marriage. It is possible that the ward or the ward’s spouse could subsequently petition to have the guardianship terminated or ask the court to name the newly acquired spouse as the ward’s guardian until the ward reaches the age of majority, but this would not happen automatically as an operation of law merely because the marriage occurred.

If the minor ward had also petitioned the court for legal emancipation, then the guardianship could have been terminated altogether without having to wait until the age of majority and the emancipated minor might have been eligible to marry without leave of court.

If a guardianship was established due to the mental incapacity of the ward, then the question of whether the ward can enter into a marriage hinges on balancing of the ward’s fundamental right to choose whether or not to marry, and the ward’s mental capacity and ability to enter into a marriage contract.

Because each ward’s mental abilities differ, each individual ward will have a different capacity to understand, contemplate and choose to marry. If the guardian believes the ward lacks the mental capacity to enter into a marriage, the guardian may contest the marriage from taking place. In the event the marriage has already occurred without the guardian’s knowledge, the guardian may petition the court to have it invalidated or nullified, sometimes known as “annulling” the marriage. It would then be up to the court to assess the ward’s mental capacity to enter into a marriage contract.

If the court determines that the ward does have the requisite mental capacity and the marriage is valid, then the court could decide if the guardianship would be terminated in part or in full.

It appears, both in law and in practice, that the threshhold for demonstrating the requisite mental capacity to marry is not unconquerable. At the time the marriage takes place, the intended spouses need only show intent to marry each other and an understanding of the consequences of the marriage, (i.e. the rights, responsibilities, and obligations of being married). Any lack of mental capacity a ward might experience prior or subsequent to the time the marriage occurred would not by itself be sufficient cause to invalidate the marriage.

If the guardianship only covers the property of the ward and the ward marries, the guardianship would likely remain in place until subsequent order of the court, regardless of marriage. It is unlikely a guardian of only the property of a ward would have standing to contest the ward’s marriage.

Possible concerns could be that the spouse married the ward in order to get access to or control of the ward’s assets. This question assumes that the guardian is working in the ward’s best interests and that the spouse is not doing so. In these matters, both the guardian and the spouse will claim to be proceeding in the best interests of the ward. In the event that the guardian and the ward’s spouse dispute the ward’s mental capacity for the marriage, the matter can be presented before a court of competent jurisdiction for judgment. Absent fraud or duress, however, if the ward possesses the mental capacity to enter into a marriage contract, marrying would remain the right and choice of the ward.

All of the above assumes that there is not a prenuptial agreement, for which both parties have the mental capacity to contract. This agreement could privately resolve the issues.

As in all such matters, it is important that all parties seek the advice of an attorney as the issue may be complex and the answers may be different according to the situation and/or state.

By Edward M. Stern, J.D., and Beth L. Aarons, J.D., M.S.W., Reprinted by permission of the New England Psychologist, April 2009.