Who will care for the kids if both parents die?

Posted in Mom Stuff
by Lorain County Moms

Aisha Sultan, St. Louis Post-Dispatch

Attorney Mary Elizabeth Coleman flipped a coin in her office to settle the gut-wrenching, worst-case decision her clients had deadlocked upon for weeks.

If both the husband and wife died simultaneously, the care and custody of their children came down to heads or tails.

It’s not the first time she’s had clients unable to agree on a guardian for their children.

“It’s one of the biggest hurdles to getting a will written,” said Coleman, whose practice is based in University City, Mo. But it should not be the reason preventing parents from taking care of their affairs.

“A will is basically an instruction book to probate courts about what you want to happen to your stuff and who you want to care for your loved ones,” she explained. Without one, a probate court will decide how your property is distributed and who is best-equipped to care for any surviving children. Yet, survey data suggests that a majority (55 percent) of adult Americans lack a will, according to statistics offered by Martindale-Hubbell from a 2007 Harris Interactive survey.

No one wants to believe they may actually die prematurely, so it’s an easy chore to put off. There are certain times, however, that push us into action. Coleman says she sees a spike in parents taking on the task when a child is born, at start of a new year or soon before they embark on a big vacation without their children.

“Most of us are not going to double orphan our children,” she said. “The problem is, if it does happen, you are left without control. So people play the odds.”

Those are risky odds when the stakes are so high. Would any of us want to leave a court in charge of deciding who should raise our children, especially if more than one family member steps forward?

Nicole Chaput, a lawyer in Webster Groves, Mo., who provides estate planning for families, says she has seen parents drag their feet on creating a will for this very reason. She advises her clients to shift the focus away from the actual people they are considering. Don’t make it about my brother versus his sister, she said. Think specifically about the qualities you are looking for, whether those priorities are religion, geographic location or kinship. And, then ask yourselves: Which people do you know who embody those characteristics? Do they already have children? How old are they? Are they willing to take on such a responsibility? Do they like your children?

The duties can be divided between a trustee, who has authority over the financial matters of your estate, and a guardian, who actually raises your children.

Coleman says she discourages picking grandparents as guardians because their advanced age increases the chances of a child experiencing a double death within a short period of time. Clients often consider which potential guardian’s marriage is more stable, and nearly all of the wills she writes include a “divorce clause,” meaning the guardian changes if the original couple has divorced when the will is effective.

Some people can’t bear to tell a family member why a friend or another relative was chosen over them. Both Chaput and Coleman say it is better to have this discussion when you can explain your reasons rather than leaving family members reeling over the decision when they are grieving.

But, if their clients are absolutely opposed to sharing their decision, they encourage their clients to at least leave an explanatory letter.

Aisha Sultan is a columnist for the St. Louis Post-Dispatch. Contact her at

Add A Comment

You must be logged in to post a comment. User agreement and discussion guidelines.