We are Not Married – What Would Happen to Our Children if One of Us Died?

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“I am a mother of two, ages 3 and 5 and have been living with the father of my children for over 10 years. (We are not married.) Recently, he has been having to travel overseas quite often and thus, we have talked about what would happen to me and the children should anything happen to him. What can we do to protect our family? Most importantly, what must he or I do so that if he ever has a tragic accident, I would still be the legal guardian of my children? (Our names are both on their birth certificates.) Would I need to sign some sort of power of attorney form? Thank you for your time!”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

From the facts you give me, it sounds like both of you have done what is necessary to establish your parental relationship with the children. In California, anyway, your children’s father’s name would not have been added to the birth certificate had he not filled out a Declaration of Paternity. If you are in a different State, figure out whether he has already made such a voluntary declaration. If not, it will usually be a pretty simple form with a very small filing fee.

Since you are not married, there may be some benefit to having power of attorney over accounts and other property should something happen to the other that incapacitates them and if that is your desired arrangement. Other suggestions would be to make sure your wills are current, and to carry life insurance for the benefit of the children.



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Author: House Attorney

A house attorney has answered this question.

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