Before you die….know this: You can’t give your kids away in your Last Will and Testament.
Many people have the strange belief that they can give their kids away in their Last Will and Testament in the same way they would bequest a car or a piece of valuable jewelry. Children are not property, however, and you cannot simply “will them” to your next of kin or your most trusted friend. In some states, however, an attempt by a party to leave their children to a named beneficiary may be used by that beneficiary in a future custody case to demonstrate a preference or a desire by the deceased parent as to who should be awarded custody of the children.
If you have concerns about the possibility that your ex-spouse (or the other parent) will attempt to give away your kids to another person in the event of his or her untimely death, there are a few things you can do. First, be sure to include language in your settlement agreements or court orders that explicitly states that “Neither party shall attempt to assign, devise, bequeath, transfer or otherwise give the children to another person or persons in any will, trust, or other testamentary instrument. Nothing contained in this custody agreement shall confer upon either party the independent or unilateral right to determine the future placement of the children in the event of either party’s death during the children’s minority. Furthermore, nothing contained herein shall be deemed consent by either party to confer upon the other party or his or her heirs, assigns, executors, administrators or personal representatives the right or the authority to consent to the adoption of the children by any third party or the appointment of a guardian to the exclusion of the surviving parent. All future custody decisions shall be determined by the Court with no preference given to statements or provisions contained in testamentary documents signed by the parties to this Agreement.”
Secondly, if one of the parents is suffering from a terminal illness or is not likely to survive beyond the time period that the children reach the age of majority, you can ask the court specifically to appoint a guardian or a neutral third party to deal with transitioning the children during the period when the loss of a parent becomes a present issue. Such a neutral party can assist the children during a period of loss and bereavement and can also serve to inform the court — neutrally and objectively — what available placement or custody and visitation alternatives make sense in the aftermath of a parent’s death.
As indicated above, a provision in a will that gives the kids away to a trusted family member or friend is not likely to have much legal impact. But it may be admissible to show the court what the deceased parent believed to be in the best interest of the children. You cannot control what somebody puts in his own confidential will, but you can create a separate agreement –as discussed above — that renders such testamentary language improper or inadmissible.