I often meet with a divorced client who is concerned about still being able to name a guardian if their ex-wife / husband is still alive. First, a single person with minor children can and should name a guardian for their minor children either in a standalone document or, more preferably, in their will.
However, as I always tell these clients, the biological parent (i.e. the ex) always acts as the lone parent if you are to pass away.
So why should someone bother to still name a guardian?
Because if they were to pass away, there are no guarantees that the surviving parent (again, the ex) will be able or willing to serve as full custody parent to their minor children. As we know, marriages often end because of this very reason. Additionally, if the ex has issues with drugs, alcohol, gambling, money or the law, they may be unfit to serve as parent if you are gone. Thus, you still want to name a guardian or preferably a guardian and an alternate / successor guardian for your minor children.
As I always tell clients who are divorced, it can never hurt you to name a guardian and if you don’t you leave it up to fate and circumstances for the court to appoint someone to do so if you are gone and your ex cannot serve, for whatever reason.
In that case, if your child is under 14, your wishes as expressed in writing will almost always be followed. If you don’t have anything in writing, terrible ex’s terrible family members are free to put their hat in the ring to serve as a minor. Do you want ex mother-in-law to be guardian? Would about ex sister-in-law?
Bottomline, get peace of mind and name a guardian as part of your estate plan.
