Being a parent is tough, but being a divorced parent of a minor child is even harder. Between all the other parenting duties that every parent must juggle, there are numerous layers of additional stressors to deal with. One of those stressors is your ex-spouse’s lingering hidden legal rights if you should pass away.
Often times, couples assume divorce severs their legal connection and they are set FREE. If you have minor children with your ex-spouse, there are rights the other parent has that may impact your estate. Yes, you read correctly. All of your assets that you worked so hard to acquire throughout the years could be subject to your ex-spouses control at your death if you do not take the initiative to pre-plan your estate ahead of time.
What are some of those lingering hidden rights?
For example, John and Cindy share 2 children, ages 8 and 12. They are legally divorced and live their separate lives. Cindy owns a home, which she bought after her divorce, some bank accounts totaling $250,000 in cash and a life insurance policy. Cindy passes away without a will or trust.
Cindy’s estate will be “probated” in California. Her assets must go through the probate court system. At the end they are set aside for the benefit of her heirs. An heir is a person legally entitled to the property of another on that person’s death. In this case, her heirs would be her 2 children.
No Planning, Bad Result
However, her children are under the age of 18, so the court will require a guardianship to be established. The guardianship’s purpose is to monitor the assets that are given to each child. Essentially, the court will name a person to be the guardian for the estate for the children. The Guardian of the estate is the person in charge of the assets until the child reaches 18 years old. At 18 years old, the assets will be turned over to the child. Often times, the other parent is the person named as the Guardian of the child’s estate.
This means that John can apply to be the Guardian of the children’s estate for his young children. As the surviving parent, he will already be the guardian of the “person.” In addition, he can ask the court to appoint him to be the guardian of the child’s “assets” as well. This means he will control the assets until each child reaches 18 years old.
Estate Planning, Great Result
If Cindy would rather have a family member or friend be in charge of her assets after her death, then she would have benefited from having a comprehensive estate plan. The plan could have included a Trust with a trusted loved one as the Trustee in charge of the assets for her children and not her ex-husband. She could have directed the Trustee on how to use the funds for her children without court supervision. She also could have adjusted the ages for the children to receive their inheritance.
If you are a divorced parent of minor children, and you want to make sure your ex does not control your assets for your children, contact our office to schedule a free consultation.
