Divorce does not automatically cancel every arrangement that parents made for their children, including their appointed guardians. However, guardians will not take over while a parent with parental responsibility remains alive.
Read more: Appointing a Guardian for Your Children
How Guardians Work After Divorce
Imagine Parent A and Parent B divorce. They have one child and both hold parental responsibility. Parent A has a valid Last Will and Testament, which names two relatives as guardians for the child.
Parent A then dies, while Parent B remains alive and continues to hold parental responsibility. As a result, the two relatives do not normally replace Parent B as the child’s legal carers.
Several years later, Parent B dies without making a Will. The child has still not reached the age of 18. Now, no parent with parental responsibility remains, so Parent A’s guardianship appointment can take effect.
Parent B’s lack of a Will dose not cancel the appointment that Parent A made earlier.
Read more: Different Guardians for Your Children
How Divorce can Affect a Will
Divorce does not usually cancel an entire Will in England and Wales. However, divorce can affect parts of a Will that concern a former spouse.
For example: The law changes certain gifts and appointments involving a former spouse after divorce.
Therefore, anyone who divorces should review their Will as soon as possible. A review can confirm whether the Will still reflects current wishes for children, as well as money and property.
How Guardians Work Normally
A parent with parental responsibility can name a guardian for a child in their Will. However, that guardian does not always take responsibility immediately after the parent’s death.
If another parent still has parental responsibility, that parent will normally continue to look after the child. Therefore, the guardian named by the first parent usually waits until no parent with parental responsibility remains.
If the surviving parent later dies without a Will, the earlier guardianship appointment can then take effect. This position generally applies while the child remains under the age of 18.
Parental Responsibility Explained
Parental responsibility covers the legal rights and duties connected with raising a child.
This includes decisions about:
- Education
- Medical treatment
- The child’s home
- And much more
Divorce does not normally remove parental responsibility from a parent who already has it. Therefore, a surviving divorced parent will usually keep parental responsibility after the other parent’s death.
This matters because it affects when a guardian’s appointment starts. When the appointment takes effect, the guardian then gains parental responsibility for the child.
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This article is for general informational purposes only and does not constitute legal or financial advice. While we aim to keep our content up to date and accurate, UK laws and regulations are subject to change. Please speak to a professional for advice tailored to your individual circumstances. Will Guardian accepts no responsibility for any issues arising from reliance on the information provided.