Our attorneys, Katie and Aaron Kinikini, are divorced, which gives them wonderful insight into estate planning for divorced parents and blended families. This post is based on their experience.
Today we want to talk about making arrangements as divorced parents for your children if one parent dies.
In any family situation, whether the parents are married or not, if one parent dies, full guardianship goes directly to the surviving parent. This arrangement is usually the best case scenario for the children involved. However, if parents are divorced, there might be some friction or mistrust between a mom and dad about whether wishes will be followed.
If you find yourself in this situation, you might be worried that your ex-spouse won’t keep your children in contact with your family and that they will lose their relationships with their grandparents, aunts, uncles, and cousins. Or you might be concerned that your ex-spouse will raise your children with different values than yours.
Unfortunately, there’s no way to force your ex (or anyone else, if we are being perfectly honest) to raise your kids in any specific way from beyond the grave. But we do have a few suggestions.
HAVE A CONVERSATION AND MEMORIALIZE IT IN YOUR WILLS.
Our first suggestion is to sit down with your ex-spouse and tell them what arrangements you’d like to have for your children if you do die. When thinking of what your ideal arrangements would be, you could consider:
- Specified time with your family members;
- Involvement in a certain religion;
- Attendance at specific schools;
- Participation in particular activities.
Ask your ex-spouse to do the same—this really should be a two-way street.
We realize that having this kind of conversation is not always possible. But, if you can, this is one of the most effective and valuable steps you can take toward creating a cohesive plan with your ex-spouse for what would happen with your children should one of you pass away.
You can leave stipulations for grandparent time or involvement in certain activities in your Trust. One option is to appoint your parents or some of your siblings as your Trustee. Giving them this fiduciary duty over your children’s inheritance would automatically ensure that they had at least some knowledge of your children’s activities and involvement in their lives. If you leave instructions that funds could only be released for specific things (i.e. education, travel, buying a house), that would build in an additional level of involvement and oversight.
BUILD YOUR WISHES INTO YOUR TRUST.
Whether or not you come to an agreement with your ex-spouse, you can also leave stipulations for grandparent time or involvement in certain activities in your Trust. One option is to appoint your parents or some of your siblings as your Trustees. Giving them this fiduciary duty over your children’s inheritance would automatically ensure that they had at least some knowledge of your children’s activities and involvement in their lives. If you leave instructions that funds could only be released for specific things (i.e. education, travel, buying a house), that would build in an additional level of involvement and oversight.
Another option is to appoint a neutral party as your Trustee, but to make the release of certain funds conditional upon your children’s involvement with your family. You could specify a yearly quota of hours or days that you would like your children to spend with your parents and state that money will be released only if the quota is met. Or, you could instruct that a certain sum would be released monthly if your children spend a weekend with your family.
The advantage of building your wishes into your Trust is that it does make them legally binding, while leaving them in your Will does not.
COMBINE THE TWO.
None of these options have to be carried out in a vacuum. If a couple of our suggestions sound appealing to you, use them all. But, whatever route you decide to take, we do suggest informing your ex-spouse about your hopes and your decisions while you are formalizing them.
There is no perfect way to guarantee that your ex-spouse will follow your wishes for your children after you die. But, the suggestions we have outlined here are actions you can take to reach an understanding or even an agreement. If this is something you’d like to talk about further, contact us. We offer free consultations and would be more than happy to talk to you about your specific situation.