Elsewhere on this site, I have discussed when estate planning is necessary, and what types of estate planning devices you may need. (See my posts on these topics here, here, and here.) In this post, I’ll discuss specific issues that may arise when a single parent plans his/her estate.
If you’re a single parent and you die, what will happen to your children?
43 O.S. § 112.5 applies here. This statute has an “order of preference” as to who gets custody:
“A. Custody or guardianship of a child may be awarded to:
1. A parent or to both parents jointly;
2. A grandparent;
3. A person who was indicated by the wishes of a deceased parent;
4. A relative of either parent;
5. The person in whose home the child has been living in a wholesome and stable environment including but not limited to a foster parent; or
6. Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.”
However, the statute also says that a court must award custody a parent unless:
1. The parent has not supported the child for at least twelve of the fourteen months immediately before the custody proceeding commences
2. The parent has left the child in the physical custody of a non-parent for a year or more, and the parent has not regularly visited or communicated with the child (This does not apply to parents in the military.)
OR
3. The parent is affirmatively unfit.
This means that, if you’re a single parent, and you die, the other parent will get custody unless the other parent has not supported the child, has left the child with a non-parent for over a year and has not communicated with or visited the child, or the other parent is affirmatively unfit. If none of those conditions apply, the other parent will have custody after your death, even if you don’t want them to. Some single parents have asked me what they can do to prevent the other parent from gaining custody after they die. I tell them there’s really no way to prevent the other parent from obtaining custody, if the other parent is a fit parent.
But if, in your case, the other parent has failed to pay child support, or has left the child with a non-parent for over a year and has not communicated with or visited the child, or is unfit, then you definitely want to make arrangements for someone else to get custody if you die. You should execute a “nomination of guardian.” If you execute a nomination of guardian, you name the person(s) who will become guardian of your children if you die or become incapacitated.
Some people have mistakenly believed that if they execute a nomination of guardian, the person they name automatically becomes guardian when they die. This isn’t true – the person still has to go to court and ask the judge to appoint them guardian. But, if this person has a nomination of guardian in hand, it’s much easier for her to become guardian.
Even if the other parent will gain custody after you die or become incapacitated, it’s still a good idea to execute a nomination of guardian for your minor children. If both parents die or become incapacitated, then a nomination of guardian can come in very handy.
How a single parent can distribute property in their estate plan
Often, when I have a client with minor children (whether they’re a single parent or not) I advise them to create a trust, in the event of their death. A trust is a legal entity where one person (the trustee) controls property for the benefit of another person (the beneficiary). People often create trusts to provide for people who can’t manage property for themselves, such as children or disabled persons.
If you’re a single parent, a trust can be especially valuable, because you can prevent the other parent from controlling their child’s property, even if the other parent has custody.
Here is what you would do:
1. Create a trust that takes effect upon your death.
2. Name your child as the beneficiary.
3. Name another person as the trustee.
Then, even if the other parent has custody, the trustee will still control your child’s property – not the other parent. If you have a great deal of property, or if you don’t trust the other parent to take care of your child’s property, this can be very effective.
If you’re a single parent an have a disabled adult child
If you have a disabled adult child, you will want to nominate a guardian for your child in the event of your death or incapacity. If your child is a disabled adult, the child’s other parent does not have a preferential right to be appointed guardian. So, you can prevent the other parent from becoming guardian, without having to prove that the other parent is unfit.
Do you have questions about estate planning as a single parent? Contact the Persaud Law Office.
At the Persaud Law Office, we’ve helped many people prepare estate plans for a variety of family situations. If you would like to discuss your estate plan with us, give us a call today.
Photo courtesy of https://commons.wikimedia.org/wiki/File:A_mother_and_her_daughter_with_a_developmental_disability.jpg. Licensed under CC-BY-SA-4.0