If I’m divorced, who will look after my kids in the event of my death?

The laws in Alberta vs. Saskatchewan regarding guardianship of children after the passing of one parent are quite different. Some parents think that it’s automatically the other parent that will get the kids. On the other hand, some parents try to put it in their Will as to who will get their kids, and it’s not the other parent.

In Alberta, you yourself in a Will can only give to another person what you have – if you have joint custody, then you can only give that to another person in your Will. Most parents, though, will agree that the other parent will have the kids in the event of their death. If you want to be certain that this happens, then you should put a clause in your Separation Agreement, and follow that up in your will. The trouble is that if you don’t put it in your Agreement, then the other parent may not carry out your mutual intention, and a fight may ensue after the death of one parent.

In Saskatchewan, the legislation states that in the event of the death of one parent, the children will automatically go to the other parent unless the parents agree otherwise. This may be problematic especially when one parent is not involved in the children’s lives. If you put an alternative guardian’s name in your Will, it may end up in a fight if the other parent and the named guardian both claim that they would like to keep the children. Beware.

What about if the surviving parent then passes away? 2 choices – you can either put a clause into your Separation Agreement naming the guardian you agree upon (then put it in your respective Wills), or agree that the surviving parent will name a guardian.

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