One of the many question that can keep a single parent up at night is what will happen to their child if something happens to them, the primary – and sometimes sole – parent. I recently read a really fantastic novel, Tomorrow, and Tomorrow, and Tomorrow, by Gabrielle Zevin, which explores this question. Full disclosure: Reviews of the novel will tell you that it is about video games, friendship, love, and the creative process – and it is. But, to an estate planner, it is also a novel about the difference between death in a video game and death in real life and what happens to a child in the aftermath of the death of a single parent.
Without revealing too many spoilers, because you really should read this book, a car accident leaves the young Sam Masur hospitalized for many months with severe injuries and kills his mother, Anna. Anna did not have a long-term relationship with Sam’s father, and although his father is alive and living in the same city as Sam at the time of the accident, his dad is not much of a character in the novel and not much of a presence in Sam’s life. Instead of moving in with his father after Anna dies, Sam is raised by his grandparents. The novel does not dwell on the legal process that allowed Sam’s grandparents to raise him, but it is worth considering.
Parents of children under the age of 18 should have a Will and a General Durable Power of Attorney that nominate a guardian and conservator for the children. A guardian will be legally responsible for the well-being of any child who does not have a surviving parent able to care for them, while a conservator, who is typically the same person as the guardian, would be responsible for the child’s financial assets. In addition, a parent will typically include a testamentary trust for children in their Will to allow for the administration of assets left for that child’s benefit by a trustee selected by the parent.
For a single parent, the question of who will care for their children if calamity strikes may be complicated if the child’s other parent is alive but is not involved in the child’s life, as was the case with Sam in the novel. A guardian or conservator will not be appointed for a child with a surviving parent. Rather, the child would become the legal responsibility of the sole surviving parent. A parent may have concerns regarding the well-being of a child if left in the care of the other parent and want to request that the surviving parent never have custody of a child, however. In those circumstances, the parent should consult with a family law attorney, as well as with an estate planning attorney.
Having a child move in with the surviving parent may work for some families, particularly if the deceased parent had a Will that established a testamentary trust for the child that appointed a trustee and provided guidelines for the trustee to make distributions for the child’s benefit. Living with his father while receiving distributions from a trust established by his mother does not appear to have been an option for Sam, and for the sake of a good story, we can be glad of that. In the novel, the reader is not provided insight into the legal process Sam’s grandparents would have undertaken to be appointed as his legal guardians, as they appear to have been, or whether Sam’s father agreed with the arrangement. Indeed, the reader doesn’t know whether Anna had any estate planning documents.
Estate planning documents would not have prevented the accident that caused Anna’s death, but they could well have helped Sam’s grandparents navigate the legal landscape when they secured custody of him. Do you have questions about estate planning as a single parent? We’re happy to help.
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