I am often asked what happens when a parent of minor children dies without a will In Florida? Where do the kids go? Who will be responsible for their care? Below is a brief breakdown of some of the possible scenarios of what could happen.
Surviving Parent:
Suppose one parent dies and the other parent is still alive. In that case, generally, the surviving parent assumes full legal custody of the child unless there are reasons (such as issues of abuse, neglect, or incapacity) that make the surviving parent unfit or unable to care for the children.
Without a surviving parent, guardianship will have to be determined by a Florida Circuit Court Judge. The Judge may consider many variables in deciding who should be appointed the guardian of your minor children, including:
Nomination by a Deceased Parent:
Sometimes, even if a parent dies without a formal will, they may have named a guardian in another written document. While such a nomination IS NOT legally binding, Florida courts are allowed to consider such a document, amongst other things, in the Court’s evaluation in appointing a Guardian. However, you should not rely on this as a backstop, and you should execute a valid will nominating a guardian (and backup) for your minor children.
Family Members or Interested Persons Can Petition for Guardianship:
If there’s no surviving parent, family members or other interested parties can petition the Court to be appointed as the child’s guardian. Section 744.3021 of the Florida Statutes allows for a parent, brother, sister, next of kin, or other person interested to petition the court. This is a broad list of people who can petition the Court, which only highlights the importance of making sure you nominate a guardian, not only because you should decide who takes care of your children but also who should not take care of your children.
Preference for Family:
While the Court’s primary concern is always the child’s best interests, courts seem to prefer to appoint immediate family members as Guardians. Grandparents, aunts, uncles, and older siblings might be considered first. But again, the child’s well-being will usually be prioritized by the Court.
The Child's Preference:
Pursuant to Section 744.312(3)(b) of the Florida Statutes, if the child is 14 years or older, the Court may also consider the child’s preference in appointing a guardian. However, the Court will still weigh several other factors, such as whether the child’s choice aligns with their best interests.
Home Study & Background Check:
Before appointing a guardian, the Court often orders a home study or a background check (usually at the guardian’s expense) to ensure the child’s safety and well-being in the potential guardian’s care. However, background checks don’t reveal personal preferences for how and by whom your children should be raised, including religious or political considerations.
Temporary or Standby Guardianship:
In some emergencies where a child’s immediate welfare is at stake, the Court may appoint a temporary guardian until a more permanent decision is made.
Guardian ad Litem:
The Court might appoint a Guardian ad Litem—a person assigned to represent the child’s interests during the legal process. This person assesses the child’s situation and provides the Court with a recommendation about guardianship.
Court Oversight:
Once a guardian is appointed, the Court doesn’t just wash its hands and walk away. The guardian might be required to provide regular updates to ensure the child’s ongoing welfare and will usually have to appear before the Court regularly.
Every Parent Needs to Nominate A Guardian In a Validly Executed Will
Even if you do not think you have enough assets to warrant an estate plan, if you are a parent of a minor child, you absolutely need to, at a minimum, nominate guardians for that child in a Will. Estate planning isn’t just about how to distribute your assets when you pass away, especially if you are a parent of minor children. Estate Planning is also critically important in ensuring your child’s emotional and physical well-being in unforeseen circumstances, including who will care for them in your absence.
Remember, it’s not just about what you leave for your child, but also what you leave them to grow up with and who will raise them. I encourage you to prioritize your children’s security and well-being by planning ahead and consulting with an experienced local estate planning lawyer to nominate and appoint guardians for your children.
