Doing your will...what if you and your spouse disagree on who to will your children to?

Question

Can you do separate wills and then if something were to happen a judge would decide whose wishes to honor? Our children are 1 and almost 3 and we have yet to do our will because we can't agree and an agreement does not seem possible. We may also be getting divorced...how does that affect our will?

Answer 1

First, you should try to work this out if at all possible. Sometimes that means giving a little.

Chances are that you will not both die at the same time, even if you stay married. However, in the event that you do -- you are putting your children at risk of being kept in foster care until a decision is made. Do you want that more than letting your husband win???? Does he????

Chances are that you are both being a little stubborn. You should have decided this before you had the 3 yr. old, not now.

I would encourage you to speak to a counselor. Even if you are ending your marriage, you are both going to be parents for your children. You need to act like it and get along for that. Let a counselor assist you in making this decision, listing pros and cons for your choices, and possibly choosing a third choice.

You can and should do separate wills, regardless of your decision to divorce. It is actually more common than doing a combined will. BE sure to take into consideration what will happen if you divorce and remarry, or don't remarry. Take it all into consideration. A good attorney will help you with that.

Answer 2

You write you will to distribute your goods.
You have a guardianship for your kids with some sort of provisions for them so they aren't a financial drain on the guardian and can go to college.
You should have separate wills, what if one of you dies before the other, you need to make it clear who gets what.
Whether or not you get divorced your priority is seeing your kids are cared for, try very hard to find a third party that you can both agree on, being hard headed in this case means you kids could wind up going anywhere at all, if both of you die in a car accident tomorrow. Honestly, you both sound like disagreeing is becoming a frequently traveled path, even if you divorce, once you have kids you will have to deal with each other civilly or you will be hurting them. I hope you have tried marriage counseling, that may be all that's needed to break the cycle you have gotten on. One and three is awfully young to be put through the divorce and argument mill.
To answer your question, you do separate will, and the one who lives longest gets to choose the guardian.

Answer 3

A will is as it has been written unless the testator did not have testamentary capacity.

In a husband and wife situation where all property is owned jointly as tenants by the entireties, the will would generally not be probated upon the death of the first spouse to die. In that case, the wishes of the surviving spouse would govern.

The wishes of the second spouse to die as expressed in that person's will would govern.

When you have wills prepared, you will typically name a "guardian of the person" of your minor children. That would be the person who would care for the children in the event of your death. Also, your will should have provisions for any financial and other assets passing to minor children. In many cases, a person or a bank trust department may be named to be guardian of the estate of the minor child. Guardianships typically end when the child reaches the age of majority. Another possibility for financial assets is the use of a court-ordered "sequestered deposit account" marked "no withdrawals before age 18 except by court order."

Answer 4

If you die, the children obviously would go to your husband, and vice versa. If you both are killed, then the children would go to the next guardian you deem in your wills. For their sake, you really need to try to come to an agreement on this. Perhaps discussing it through a mediator would be helpful in coming to a decision.

As far the divorce - you might need to change your wills stating of primary beneficiary, though chances are you are both naming your children with each other as guardian until they are adults.

Try to make your marriage work if at all possible. Raising two small kids is TOUGH, but not nearly as tough as doing it in separate households. Get some good counseling, and try to stick it out. It gets easier as they get a little older.

Answer 5

creating seperate wills and causing a long court battle would be a terrible thing to do to your children, because throughout the litigation they would be in Limbo, not knowing where they are going to be living and at the same time, grieving the loss of their parents. It is called compromise. My spouse and I disagreed at first, but compromised for the sake of our child.

Answer 6

I would suggest you both make a will, each with your own options,and dont forget it will depend on the one thats left, i dont know where you are from, but you can get a will on line for $20