Disagreement over guardian

[meldresler]

We are in Virginia.

My husband has a daughter from a previous marriage who is now 23. He let me know that if anything happened to the two of us, he would want her to be the guardian of our child (an infant). Trust me we don't want her to be guardian, bit it's an extremely touchy subject.

I immediately ran out and drafted my own will specifying my family members if I die as the sole remaining spouse. If he puts his daughter and - in the off chance that he and I die together in an accident - what would happen? I guess I'm out of luck in dictating her guardianship if I die first...?

 

[ALawyer]

This is the type of thing that raises more family feuds needlessly, keeps more people from doing Wills, and creates anger and resentment.

In 98 out of 100 cases, a surviving parent will get custody of the couple's child, regardless of anything in the Will of the first parent to die. The execptions usually are where the first parent is a convicted chlid abuser, serving time in jail, been totally out of the picture, or ruled mentally incompetent by a court.

Being given Guardianship of the person of a child is NOT an honor, but a great responsibility. Many non-family members named guardian decide not to take that responsibility on. It is expensive and disruptive to their lives and the lives of their children.

I suggest you and your husband each do a separate Will, naming the surviving parent as Guardian. And in the Wills each of you would say who you would want to have as Guardian should the other parent not survive (I assume you would name your family members and he would name his daughter) and an additional alternate Guardian (here you may name another relative of yours, and he may name someone you named or someone else in his family.)

In that case the court could make the determination in the event of the always feared, but not very likely, common disaster.

Also, it is possible, but not always wise, to separate the role of Guardian of the PERSON and Guardian of the money that the child would inherit. If say the daughter would be a wonderful replacement parent but is reckless with money, then you could name her as Guardian of the person and a bank or relative of yours as co-Guardian ofd the property of the child.

 

[beat goes on]

Can she have her husband say if they die together she be considered to have survived longer then he. This way wouldn't she have the determination as to who the child's guardian is?

 

[ALawyer]

There are usually tax and inheritance questions rather than Guardianship issues resolved by that, and if both named Guardians came into court and tried to fight over it, it would take a Solomon-like judge to resolve it and I doubt that a survivor clause would carry the day absent all else being equal. Also, the simultaneous bdeaths need not be a plane crash. in a car accident X may dies on day 1 and Y from injuries 34 days later....