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Ask An Attorney: Family Law & Your Will

If I die before my divorce is final I do not want my spouse to have custody of our children nor access to my estate. What should I do?

When children are in your life, everything changes. Until your divorce is final, and without a written agreement in the interim, under Maryland law your spouse can still be an heir. You should immediately have your will reviewed or drafted to remove your spouse as an heir and to specifically disinherit your spouse. However you should know that your spouse has an absolute right to claim a statutory forced spousal share of one third of your estate if you die before your divorce decree is signed and docketed and final.

You may appoint a guardian for your children in your will other than your spouse. However, appointment of a guardian for your children in your will is not binding on a court, and the surviving parent of the children will continue to be the parent of the children and will most likely have custody unless there has been a judicial decision that the surviving parent is not a fit and proper person to have custody. Even then your appointment of a guardian in your will is not binding on the court.

Regarding money and property, your will should protect and preserve your assets and appoint a Trustee to hold your estate for the benefit of your children. The trust in your will should be written so that your spouse can not have access to the trust funds which should be controlled by your trustee.

You should make plans for guardianship of your children and their school, medical and personal needs. You need to plan in advance and consider the worst! You will not be there to help your children- you need to protect them now and plan for their future well-being while you can. Contact our Annapolis attorneys to discuss your options with one of our experienced attorneys today.