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Question about wills

Posted by mom2emall (My Page) on
Sun, May 23, 10 at 11:24

After reading Sylvia's post I started thinking about wills. Do any of you custodial stepparents have anything in your spouses wills about what would happen to custody of the children in the event of death??

I worry about this a lot. My state does recognize stepparents rights, but I always worry about what would happen if dh died. I know bm would try to get custody because she would see the $$$ signs. And she would destroy the kids lives if she had custody! I am not exaggerating when I say that.

Me and Dh do not have wills, and I wondered if he can leave me custody of his kids in his will since he has sole custody?


Follow-Up Postings:

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RE: Question about wills

consult with a lawyer. Even if DH would say in a will that kids stay with you, I believe BM has rights to dispute in court then court can decide based on past evidence.

I heard of people who got in big disputes over where the child suppose to go if a custodial parent died, sometimes grandparents would want to keep a child claiming that bio parent is unfit parent.

If I had a will saying that after my death DD goes to my mother, brother etc my ex would certainly argue in court and most certainly win, plus DD would say she wants to be with dad. I don't think CP can make unilateral decision where kids go, otherwise too many people would just use it for revenge. In your case when BM truly is unfit mother, I think you and DH should go see a lawyer prior to writing a will.


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RE: Question about wills

It isn't likely that he can will custody of the children to you. Without being a lawyer, my only thought would be that you would need to adopt the kids or file for guardianship if anything happens to your DH.

As for wanting the kids for the money... he should set up a trust with you as executor so the kids don't come with the money. I agree that you should consult an attorney and cross all t's, dot all i's. Money should be held in trust for kids until they are adults and maybe for specific purposes.. ie. wedding, college, buying a house, etc.


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RE: Question about wills

The SS money will generally go the guardian, regardless of the trust. While dad can indicate that he doesnt think that should be mom, I dont think it would be a slam dunk


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RE: Question about wills

The only way I know to assure that you'll get custody is to have the birth parent *terminate* his/her parental rights (or prove that the birth parent is unfit & have the court terminate parental rights), & then you can adopt the child.


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RE: Question about wills

We had actually looked into this. DH can indicate who he prefers to have SS, but apparently that can always be taken to court and so isn't much use. In our state, there is something called emergency legal guardianship or such; basically I think it has to be approved by a judge but it specifically says that in case of death or serious illness or whatever you designate, so and so will have temporary legal guardianship. We're looking into that because otherwise, if something happened to DH I could not even consent to surgery for SS or anything (say in case of car accident or something).

Our state does recognize "in loco parentis" rights so I'd have to go to court, but at least I'd stand a decent chance of winning. It appears that there is a much, much better chance of SP's getting custody over a bio-parent if it's after the death of the custodial parent, and not after divorce of SP and custodial parent.


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RE: Question about wills

I think unless the other parent is absolutely nonexistant or proven to be unfit, it is not very appropriate to indicate that someone else should be taking care of the kids. simply the fact that a parent is noncustodial or sees kids infrequently is not good enough reason. yes, in mom2emall's situation it is the case of unfit parent and mom might not even want the kids. But it is not that simple in every situation.


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RE: Question about wills

One problem is that there's a vast amount of space between "best interests of the child" & "unfit".

Unless the non-custodial parent has been dealing drugs or running a brothel or beating the stuffing out of the kids, that parent's rights are intact & the fact that he/she was the non-custodial parent makes no difference.

I was reminded to post something about wills because of something in which I'm peripherally involved right now.

Mom & Dad divorce;
Dad is awarded custody as he's the better parent so it's "in the best interests of the child".

Dad is killed by a drunk driver.

Child automatically goes back to her mother.

Dad's father dies without a will, so the estate is divided between his daughter (Dad's sister) & the little girl.

Little girl's mother has absolute control of the money, & the prediction is that the granddaughter will never see a penny of it.

same thing happened in my family a number of years ago;
as soon as the funds were made available, the "deadbeat parent" immediately bought a silver Lincoln Continental, doubled the size of her house, & bought a beach condo.

Kids grew up & went to work.
no car, no college, nothing.


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RE: Question about wills

Sylvia that is so sad! The only money bm stands to get control of if something were to happen to dh is social security benefits. And she could also increase her welfare I am sure. But I think these two things are a big enough motivator for her to want custody if dh died.

A few years ago she told dh that if she would have custody of the kids she would be able to handle it because she would get child support from him!! That comment made me sick.


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RE: Question about wills

Sylvia, the story is heartbreaking, but I am pretty certain that it is easier to contest the surviving parent being guaradian of the money than custody of the child.


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RE: Question about wills

sylvia and mom: The same sort of thing happened to my aunt's nieces and nephew. After their parents divorce, their Mom died due to a really egregious medical mistake. Fortunately my uncle has a large heart and could afford good enough attorneys that he and his wife got control of the settlement money and guardianship of the kids. My aunt and uncle spent their own money raising the kids, and the money sat accumulating interest until they each reached 18. "Dad" showed up periodically to threaten my uncle and demand his "fair share" of the money! (If I remember correctly at one point he offered to drop any attempt to get rights to his kids in exchange for X dollars.)


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RE: Question about wills

Mattie, I wonder if a lot of these absentee parents would agree to terminate their parental rights for the right amount of money.


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RE: Question about wills

sylvia, I have actually seen suggestions online about deliberately not filing contempt orders for overdue child support for deadbeat parents, and just letting the total accumulate until it is several thousand dollars - then offering to drop the back child support in return for agreeing to terminate rights. It's a shame that things can get to that point and adults cannot be reasonable.


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RE: Question about wills

sounds like a blackmailing to me


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RE: Question about wills

Yes, it does. I have the feeling that if a judge found out that one parent was basically selling their child and another was buying them that they wouldn't be thrilled with either one of them.


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RE: Question about wills

Granddad's house sold & closed yesterday.

As we were waiting for the title company to cut the checks, Grandad's daughter said something jokingly about her niece living with mom forever (mom has a new pool).

Mom says, "no, she has 90 days after she graduates from high school, just like her older sisters. One of them went into the military, one went to school."

As we were leaving the title company, I gave the little girl my card & told her to keep that money in the bank & when she graduates from high school to call me & I'll help her find a home.


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RE: Question about wills

Mattie, that is exactly what my son's attorney told him. He wanted to adopt his step son but the birth father would not give up his rights. An attorney, told my son and his wife to file for child support, then wait two or three years and demand the child support. The father gave up his parental rights to keep from paying the back support. I think my son's step son bonded with my son more than he did with his mom or bio dad.


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