Estate planning can be difficult for any parent, but single parents, without a spouse to inherit and take custody of children, must take special precautions when making wills and other end-of-life arrangements. While these documents can be changed (except in the case of an irrevocable trust), they should reflect your reality as a single mom or dad with at least partial custody of minors.
When deciding what is best for your children, consider including their other parent in the conversation. Both of you may be bound by custody agreements, or you may have an informal, amicable co-parenting agreement. Check with a professional about what is feasible and legally valid. Know that you’re not alone with your questions and concerns; of all the family units in the United States, over twelve million of them are run by a single parent.
In the event the child’s other parent is not in the picture, speak honestly with other family members who might provide secondary care for the children. They might have questions and suggestions you have not thought of. Don’t put it off or wait until you are older or seriously ill; deciding what kinds of arrangements to make for your children in the event of your death might not be not pleasant, but will provide you with peace of mind that a definite plan has been set in place.
Ensure Estate Planning Documentation Is Current
In the emotional turmoil and legal wrangling after a divorce or breakup, some parents neglect to update their wills. This can severely impact the children who have resulted from the union. Some single parents are horrified to discover that they have still listed their ex as the primary beneficiary of their estate; others who have a cordial relationship with their children’s other parent prefer to leave the bulk of their estate to their ex to ensure proper care for their children.
Many life changes take place after a divorce that should be reflected in the end of life paperwork for a single parent. Did you move out of state after your breakup? Doing so can invalidate the work you have done at your old address. Check to see if your last will and testament, medical directives, and living wills are still binding. A legal professional in your new state of residence can assist you.
Remarriage (or marriage if you and the child’s other parent were not previously) can change the realities of wills and trusts as well. How does your new spouse view co-parenting with your ex, if necessary? Does the children’s other parent have a significant other or new spouse as well? Where would you like new spouses and partners to fit into the legal guardian picture? What about additional siblings, either with a current partner or someone else? Have your parents, or the parents of your ex partner passed away or become incapacitated, and if so, are they still listed as your children’s legal guardians in the event of both your deaths? Taking constantly changing, blended families into consideration is important as you update these documents.
Legal Guardianship & Custody
As in divorce, when the courts decide guardianship in the event of the death of a custodial parent, the judge will take into account “the best interest of the child.” This means weighing several factors when several guardians are eligible for the role. They include the children’s amount of time in their home, the closeness of the potential guardians, and the caregiver’s maturity, financial stability, and intent to parent. They need not be relatives, but they should be legal adults and demonstrate an ability to care for your children. They should also be prepared to make annual reports to the court about the children’s well-being.
Many courts will award custody to the child’s other parent despite past custody agreements and divorce stipulations, even if the deceased parent has previously made his or her wishes clear that another adult should become the child’s guardian. However, if the surviving parent has in the past proven him or herself unfit or unwilling – due to any abuse, neglect, or domestic violence – courts can award custody elsewhere. If your child’s other parent has either waived his or her parental rights or has been deemed unfit, it’s essential to include evidence of such decisions with your estate planning documentation. In this situation, also add the legal names and current contact information of the adults you would like to assume custody of your children.
Financial Care for Your Children
This is another serious topic to broach with your ex partner if he or she is involved in the lives of your children. Funding your child’s care after your death can include placing tight restrictions on your assets to ensure that they are allocated to the care of your child. Other possibilities include life insurance policies; explore such options as college funds and trusts to see what is best for your family.
Take your children’s ages, possible plans for higher education, and proximity of trusted friends and family members into consideration. Keep in mind that if you choose a trust as part of your estate planning—a legal entity which holds your assets and dissolves upon your death—you are the one who chooses its trustee, or the person designated to expend funds or sell assets. You can also choose the age at which any minor children may assume the contents of the trust.
Power of Attorney
Obtaining power of attorney is a good idea even if you aren’t facing a serious illness. Power of attorney might be necessary if you become incapacitated, even on a temporary basis. In the event of your incapacitation, power of attorney allows a trusted adult to make financial and legal decisions on your behalf. You are not required to designate the children’s other parent as this person. Some forms of power of attorney will also permit another person to make decisions regarding your medical care or issue decisions about your children’s education or place of residence.