You have signed the divorce papers, established custody arrangements and created a new normal for your family. Then, a troubling thought emerges: who would raise your children if something happened to you? For divorced parents in Texas, this question carries unique legal complications that your existing custody agreement might not address.
Understanding Texas guardianship laws after a parent’s death
Custody agreements address parenting while you are alive. Guardianship, however, determines who cares for your children after your death. Without specific guardianship designations, the court makes this decision based on Texas law.
The court’s primary consideration is the best interest of the child. While the surviving parent often has a strong claim to custody, it is not automatically granted. The court will evaluate the surviving parent’s fitness, the child’s relationship with the surviving parent and other potential guardians, such as grandparents or other relatives.
The court may award custody to someone other than your ex-spouse if it finds them unfit or if other compelling reasons exist to serve your child’s needs better. However, without your clear written instructions, the court might make decisions that differ significantly from what you would have chosen for your children.
Protecting your children’s future
To protect your children’s well-being according to your wishes:
- Create a will that specifically names your preferred guardian
- Document reasons if you believe your ex-spouse should not have custody
- Discuss your concerns with an experienced estate planning attorney
If your ex-spouse has a history of abuse, addiction or severe mental health issues, these factors can influence guardianship decisions. These considerations only matter if properly documented and presented to the court.
Taking action early
The time to address guardianship concerns is before an emergency occurs. Having clear legal instructions provides peace of mind and protection for your children.
Estate planning attorneys can help with these sensitive issues while creating legally sound documents that stand up in Texas courts. Consulting with an attorney experienced in both family law and estate planning keeps your children’s future in the hands you trust most.
