Who gets the kids if both parents die?
It’s the first date night a couple has had in several months. They have one toddler and a newborn at home. During the period of awkward silence that inevitably arises at the thankfully loud Chili’s showing SportsCenter with closed captioning, the wife asks, “What would happen to the kids if we died on the way home?”
It is obviously an important question. No one likes to talk about it because the discussion alone could cause it to happen. Also, though, it brings up a whole mess of issues that are not always pleasant. In short, it could very well lead to an argument. And, considering the rarity of date night, a particular spouse is probably walking pretty gently to make sure he is not the cause of an argument. Now, though, a question is on the table. It cannot be ignored, but the answer is unknown. Regardless, a follow-up question is inevitable, “Who do you think would be best to raise your children?” As he curses himself for not making a list of conversation topics to prevent her mind from wandering to worry, the husband searches for ways to evade the discussion altogether. Then, she accuses her husband of not wanting the best for their children. And, considering the Texas guardianship selection process, she is kind of right. (As an aside, there is nothing inherently wrong with Texas’ guardianship selection process, it’s just not as good as good as the parents making that determination for themselves.)
In Texas, unless the parents appoint a guardian, the order of appointment of a guardian for a minor child is somewhat uncertain. First, the nearest ascendant (usually the grandparents of the child) will be appointed guardian. If there are multiple ascendants (grandparents), then one will be chosen according to the circumstances and considering the best interests of your child. An attorney for the child and the judge will determine which set of grandparents would be best for the child.
If a minor has no ascendant that is alive, the nearest of kin will be appointed guardian. This would usually be the siblings of the parents of the children. Again, if there are multiple siblings of the parents, then the court will choose a sibling in accordance with the circumstances and the best interests of the child.
Of course, the court has absolutely no idea about the parents’ wishes for the children. Perhaps the parents wanted their children to be raised in a more Christian environment. Perhaps they did not want to be a financial burden on a particular sibling. Perhaps they did not want to be a burden on their parents who are enjoying retirement. Or, perhaps they are concerned that their parents will soon need someone to take care of them. (Considering the ages during which the younger generations are getting married and having children, this is a very real concern.) Regardless, no one knows better what’s best for a child than the parents.
Fortunately, parents have the power to appoint a guardian, which is the best way to make sure that their children will be raised the way in which they desire. Often, the guardianship appointment is made in a person’s last will and testament. Additionally, the last will and testament will likely contain language that dictates how the estate should be handled for any surviving minor children. Further, life insurance can be purchased to make sure that the guardians have the ability to provide for the children for years to come.
Back to the story line, the husband should probably answer by setting a certain time to discuss the topic. After all, unless the parents are planning to name the Chili’s waitress as a guardian, it requires a little forethought and discussion with the person(s) being appointed as guardian. After the very grown-up decision to appoint a guardian for their children, the parents should contact a local attorney to start the paperwork, which does require some fairly strict signing requirements.
Robert Newton is an attorney based in Frisco, Texas, that practices estate planning, real estate law, and business law. This post is meant for informational purposes only and does not constitute legal advice.