Naming a Guardian and Conservator for Your Children in Your Will After a Divorce

By:  Brittany E. O’Brien and Heather Rooney McBride

One of the reasons people choose to prepare a will is that it enables them to name a guardian (person who has custody of the minors) and/or conservator (the person who controls the money of the minors) for their children.  If you are married, your spouse will have legal custody of your children if you pass away.  But what if you are divorced?  Does your ex-husband or wife still get custody of your minor children?

In Missouri, the answer is yes.  Regardless of the visitation schedule, like it or not, a biological parent of a minor child does, almost always, obtain custody over minor children if the other parent passes away.  However, this does not mean that if a person is divorced, there is no need for a will.  It is still important to name alternate guardians and conservators for your minor children, other than your ex-spouse, because your ex-spouse could pre-decease you or may not be fit to be or want to be a parent to your minor children.  In such cases, if you were to die, who you name in your will as the alternate guardian would be valuable to a court trying to name a guardian and conservator.

Part of the purpose of estate planning is to prepare for all the conceivable possibilities of what could happen and to let your loved ones and possibly the court know what you would have wanted to happen in those situations. Thus, even though the other parent of your children will have first rights to custody if you pass away, naming alternates is important.  If you fail to name an alternate guardian and conservator, and then you pass away and your ex-spouse is not able or willing to be an appropriate parent to your minor children, your children will likely have to be taken into the custody of the State.  This means they could be placed in foster care, or any relative could petition for guardianship and conservatorship, including the extended relatives of your ex-spouse.

In a guardianship/conservatorship proceeding, the court makes every effort to do what is in the best interests of the children.  If you have set out what you as their parent believe would be in the children’s best interests, the Court will consider and likely give deference to your wishes.   The older your children are, what they want will also factor highly in any court’s decision, but it cannot be overstated how important a properly executed will from a deceased parent is in the eyes of the court.

Naming a guardian and conservator is not difficult.  Our office routinely includes this information when preparing a simple estate plan for individuals and families.  If this is something about which you would like more information, please call and schedule an appointment with one of our estate planning attorneys.