Making the Argument

The Hard Truth: What Happens to Your Young Children When You Die? - It May Not Be What You Think

By Michelle Fulton

August 5, 2004

The guardianship series of three articles is being rerun for our new readers.

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: We have recently had our first child, and some friends of ours have advised us that we need a will and some other things done. My husband and I cannot agree on who to trust to raise our daughter in the event that something happens to both of us, and have had too many heated discussions over the topic.

I either heard or read somewhere that if we were to die at the same time, the children would automatically go to the parents of the wife. Is that true? How can we deal with this in a way that eases the tension?

A: There is no other way to say this than bluntly, so I’ll get to it: If you and your husband were to die simultaneously, and you did not leave provisions in your will appointing a guardian for your minor children, NEITHER of your families would get your daughter- the State of Texas, Child Protection Services, would have custody of her, pending the outcome of a very long, drawn out, nasty courtroom battle between your two families over who should ultimately raise her.

I’m sorry, but that is not responsible parenting. You and your husband should not leave this issue undiscussed or undecided. You have a duty to your newborn child to provide for her every need, including who should raise her in the event that you both should pass at the same time.

I have read about and heard of cases where the children involved remained in foster care for several months. Not only to they have to deal with the deaths of their parents, but they also have to live in the homes of strangers who are not always equipped to help the children deal with their grief.

This is a very bad scenario, indeed, but it happens every day because we as parents do not take the time to make provisions for their care- we’re either "too young, too busy" or believe that we are invincible and will never die, so why worry about it? That is a dangerous gamble to take with the welfare of your children.

While death may be an unpleasant idea, and while we may not like the fact that we have to address it, it’s better to take two hours out of your life now and come up with a plan, than to do nothing and force your children to suffer for it.

There are various ways that you can resolve conflicts regarding who you should appoint as guardian of your children. First, keep in mind that you do not have to appoint the same person to both have guardianship of your child and the money you leave to your child.

In Texas, you may appoint a guardian of your child’s person (the one who will have physical custody of the child and be responsible for raising them) and a guardian of the estate (the money, real property, and other assets) to mange the money and make expenditures for the child.

I recommend that you appoint different people to fill those roles, unless you are lucky enough to have someone that you completely trust.

Second, talk to the people you are considering, and see how they feel about it. Perhaps they don’t want the responsibility, or cannot afford to take it on.

It’s better to know that going in than to name them and have them refuse to serve.

Third, make sure you name at least two sets of guardians in case one cannot fulfill their duties and need to step down.

The court gives deference to your wishes so make sure you cover the bases. Your child’s welfare and future happiness depend on you choosing wisely.

Bottom line: Plan for your children with all of your heart now, and spare them the agony of being fought over like a pawn in a chess set.

NEXT WEEK: Things to consider when appointing a guardian for your children.

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3, Houston, Texas 77058.