Nashville Guardianship Lawyer Answers: Will my Ex get my children if I pass away?

by April Harris Jackson | Apr 29, 2026 | Estate Plan

Nashville guardianship lawyers are asked this question nearly every day! The answer is…maybe. Before you begin to worry, let us explain.

By law, parents are the natural guardians of their children, regardless of the parents’ relationship. When unmarried or divorced parents have a formal parenting plan and one party passes away, that parenting plan is no longer valid. In most cases, the child’s permanent custody would revert to the surviving parent.

What If the Surviving Parent is “Unfit?”

If there are concerns about the fitness of a surviving parent, the State of Tennessee has a provision where a third party can step in and apply for guardianship of a minor child. For example, a grandparent may be compelled to apply for guardianship if they feel the surviving parent is not capable of raising the child(ren). Unfortunately, in these circumstances, the burden of proof is on the grandparent (or other petitioner). The third-party would have to prove in court that the surviving parent is unfit, which could result in an expensive and lengthy custody battle.

You Can Still Have a Say

As a parent, you can also take steps to make your wishes for your children known in your will.  If you believe that your ex is unfit or unable to care for your children in your absence, you can use your estate plan to spell out your concerns and offer up alternative choices for guardians.  After your passing, a judge will be given the opportunity to review your wishes and ultimately decide if choosing a guardian other than the biological parent would be in the child’s best interest.

Even if your ex were to obtain physical guardianship over your child(ren), that does not mean that they have to get any money that you have set aside to care for your child in the event of your death.  Many people use trusts to control how any inheritance is managed rather than potentially letting the other parent gain control over the child’s financial assets. A well drafted trust allows you to manage your child’s financial future even after you are gone.  

What if parental rights were terminated?

If the surviving parent has previously had their parental rights terminated, they will not be considered for guardianship of the child(ren) after the death of the other parent. In these cases, it is extremely important for the parent who retains rights to have an estate plan that spells out exactly who should raise the child and what resources are to be used to do so if something happens to mom or dad.

Get Informed to Be Empowered

While guardianship questions are rarely black and white, the solution in almost all instances is to create an estate plan. There is nothing more important in life than protecting our children’s future, and a straightforward estate plan can give you the peace of mind that your child will be protected no matter what!

If you have questions or you are ready to get started with creating legal documents to protect your family, please schedule an appointment with our Nashville guardianship lawyer, April Jackson.  

Nashville Estate Planning Lawyer: How Prenuptial Planning Offers Protection Against Life’s “What-Ifs”

by April Harris Jackson | Apr 8, 2026 | Estate Plan

Now that vaccinations have started and “normal” life is within our grasp, many couples are starting to resume their wedding plans. Those who have postponed their big day or got engaged during the pandemic are once again starting to put deposits on venues, purchasing gowns, and even planning honeymoons. However, as a Nashville estate planning lawyer, I want everyone to know that estate planning and prenuptial agreements should be part of the process along with selecting flowers and all the “fun stuff.”

All marriages celebrate the joining of two lives together, a union of family and finances. And while estate planning is not exactly romantic, it can create a feeling of being protected even if the worst happens. Likewise, creating a prenup before the marriage can offer each partner security and confidence that all of their bases are covered as they enter into the union. Essentially, it sets forth how all property, assets, childcare, and spousal support would work IF the marriage did not survive. The prenup’s contents depend on the unique needs of each couple and the document is designed to protect each partner if the marriage were ending, whether through death or divorce.

Couples are encouraged to create an estate plan together, but each partner will need their own lawyer when creating a prenuptial agreement. The reason is simple; the prenup is meant to protect each partner separate from the other. It is also vital to select an attorney in the state where the couple plans to reside, as there may be different laws regarding support after a marriage ends.

A Nashville estate planning lawyer will be quick to point out that a prenuptial agreement is often a process that keeps marriages from ending in divorce, or protects the family after the death of one partner. Starting the marriage on a strong financial foundation can bind couples closer together. It gives them an open and honest place to discuss financial plans, ideas on fidelity, wishes for the future, and how each views the marriage before entering the contract.

If you or a loved one is getting married, please consider an estate plan and prenuptial agreement as part of the wedding plans. That way, as you walk down the aisle, you know that no matter what, your future is protected. Speak with our estate planning lawyer, April, by scheduling an initial call.