Estate Planning After a Divorce

One of the most important reasons young parents create an estate plan is to name a guardian for their minor children in the event that both parents die before the children become adults. If the parents are divorced, their individual wills may name a guardian who is not their ex-spouse. Who would become the guardian of the children?

In Ohio’s juvenile code, for example, a court is required to make custody decisions based on “the best interest of the child.” While the child’s best interest is most often to be cared for by his or her parent, parental custody is not in the child’s best interest if, for example, the parent has abandoned the child, is unable to provide support, or is otherwise unsuitable. (See In re Perales, 52 Ohio St. 2d 89 (Ohio 1977))

To determine the child’s best interest and the parent’s suitability, the court would have a number of factors to consider. For example, the court would take into account a divorced mother’s will which names a grandmother as guardian. However, it would also examine the children’s relationship with their father: Does he live nearby or out of state? Is he involved with parenting? Physically violent? The couple’s divorce or custody orders may also provide important information for the court to review.

The bottom line? If you are divorced, it is essential to consult an attorney when making or updating your estate plans to ensure that your wishes for your children are reflected in your estate documents.

A version of this post was originally published by Mallory Law Office, LLC.