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What happens to the kids if my ex and I both pass away?

Appointing a guardian of your minor children if both you and their other biological parent pass away can be tricky when you don’t see “eye to eye”.

Just because you have sole or significant parental responsibility of your minor children, does not mean that you have sole decision making power when it comes to appointing a guardian on your death. Except in extraordinary circumstances, the minor children’s other biological parent would likely assume sole or significant parental responsibility if you pass away. 

For some of our clients, it is not so much that their ex is unfit to assume sole parental responsibility.  Rather, their ex has completely different views on how the minor children should be raised.  

During the divorce and financial settlement process, many parents will make a plan to address:

  1. Where the children will live;
  2. How much time the children will spend with each parent;
  3. How much the children will communicate with each parent; and
  4. Who has parental responsibility for certain decisions.

The plan could also address much broader considerations such as, where the children will go to school (either now or in the future), whether they will practise a religion, whether they will proceed with certain medial treatment (either now or in the future), how much time the children spend with other members of the family, whether a parent can relocate, whether the children can travel overseas and interstate and obtain a passport and so forth.

This plan can be an informal arrangement between parents or can be formalised through binding parenting orders.

Parenting orders can be obtained by consent, meaning that both parents reach agreement and put that agreement before the Court to ratify.  If parents cannot agree, then they can litigate and the Court can determine the parenting orders.  Although your choice of guardian is not binding, the Court will give your choice significant weight and consideration.  

Either way, parenting orders provide a degree of certainty that your children will be raised according to the orders.  Parenting orders can be updated from time to time, particularly if the children’s age and needs change and/or the parents’ circumstances change.  However, you can rest assured that the Court will only update the orders if it is in the best interests of each child to do so.

Accordingly, if you know that your ex has different views on, for example, schooling, it is better to address this whilst you are alive, then assume that your estate plan will be able to address it on your death. 

Your estate plan will be able to implement certain measures to ensure that your children’s inheritance is managed and administered in accordance with your wishes.  However, it will not empower your executor or trustee to, for example, “force” your ex to send your children to a certain school.


For more information on parenting orders and appointing guardians of your minor children, please contact Camille Broadhurst at Russell Kennedy Aitken Lawyers. 

Camille Broadhurst, Associate Solicitor at Russell Kennedy Aitken Lawyers
Email: [email protected]
Phone: 8987 0000

Please note the information contained in this article is intended as general guidance and should not be regarded as legal advice. Should you require specific advice, please contact Camille Broadhurst directly.


Author: NBMs

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