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My wife and I need to make our separate wills, I have a son that I get time with how do I make sure he has contact with my fam?

Portland, OR |

My wife and I don't have much but we want to make sure we have separate wills because its not like we are going to go together. We have a daughter together and know who we want to take care of her if something happens to us both. But if I were to go first I dont know how to express or pass down my parenting time to my wife in a will to make sure my son has continuing contact with my wife and daughter as well as other family members. Will my wife have to go to court and get her own time and would my will help with that? Or would my will be sufficient enough?

Attorney Answers 4


  1. I have added the estate planning practice area to your question to see if those attorneys have thoughts on this. But if it were to come to litigation to get your wife time with your non-joint son , she could file a petition under ORS 109.119 if she has established a child parent or ongoing personal relationship as those are defined in the statute. It's not a simple process so she will need an attorney. If you havent spoken with your son's mother about it you should. Maybe she would be willing to agree to something.

    My response(s) to the question(s) on this website do not create an attorney-client relationship. An attorney-client relationship is not created until a Fee Agreement has been signed. In addition, my suggestions are based on very limited information provided by the Asker and are given based on my experiences and general circumstances. My suggestions may not ultimately be applicable to the Asker's situation because of the limited amount of information provided. No suggestion is guaranteed to be sucessful. Case specifics should not be shared online. You should seek specific legal advice in a private setting. Shannon L. Hall, Attorney at Law (Licensed in Oregon) 245 East 4th Avenue, Eugene, OR 97401 Phone: 541-434-2411, Email: Shannon@GoodOregonLawyers.com


  2. I agree with Ms. Hall. A will is not really the proper tool to determine the custody and parenting time of your son after your death and I don't see any family law judge enforcing it. Instead, a will is meant to determine how your wealth and assets are distributed. Here's a link to the statute that describes how your wife would go about proving that she's established a parent-child relationship, but I'd like to reiterate the warning that this is a complicated process and she shouldn't try to do this herself without help from an attorney: http://www.oregonlaws.org/ors/109.119

    Here's another question to consider: where's the biological mother in all of this? Does she have any sort of relationship with your son? If not, would she agree to a step-parent adoption by your wife? If so, this would sever all custody and parenting time rights of the biological mother (and also her obligation to provide child support) and make your wife your son's mother and custodial parent in the eyes of the law. Also, if the biological mother hasn't had any contact or paid any support in at least a full calendar year, then a step-parent adoption could possibly go forward over her objection. Again, this is an in-depth, fact-specific argument on which you should consult with an attorney rather than attempting by yourself.

    My responses to posts on AVVO are not legal advice, nor do they create an attorney-client relationship. In order to provide true (and reliable) legal advice, an attorney must be able to ask questions of the person seeking legal advice and to thus gather the appropriate information. In order for an attorney-client relationship to exist, you and I both have to agree the the terms of such an agreement.


  3. I agree with my colleagues. Your will is not the proper tool to handle to address future child custody arrangements. That being said, you should probably consult with a local estate planning attorney to outline your estate planning needs, including how and where property (assets) are to go and to nominate a guardian for the child of your current marriage. As for the child of your prior marriage, you can nominate a guardian, so long as you understand that the child's other parent will have substantial priority, absent special circumstances.

    ** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client relationship. When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel. Law Offices of Eric J. Gold www.EGoldLaw.com Telephone: 818-279-2737 Email: service@egoldlaw.con


  4. The best answer is to create the parent-child relationship as that is a proceeding that comes with a signed and valid judgment as Attorneys Hall and Nessly have answered. From and estate planning prospective, I agree with Attorney Gold...

    That being said, with respect to a wills question, you may try a Trust as a way that may avoid the ugly court proceeding. It may be possible to persuade/force ex-wife to allow for continuing contact via Discretionary Joint Trust for the children using Wife as trustee and children as beneficiaries for a Trust, perhaps funded by life insurance, in an amount sufficient to give ex-wife a financial incentive, from a practical standpoint, to allow and possibly encourage the continuing family contact. Such contact might later be allowed as evidence if the court proceeding over parental rights or guardianship was ever needed.

    Whether this would be worth trying depends on many factors such as but not limited to: 1) Can you afford a policy or are you willing to change the beneficiary designation on an existing one? 2) What is the state of the present family relationships? 3) What does the evidence look like for establishing your wife as the guardian or parent? 4) What is your exwife's financial situation?

    Estate planning is about control of both finances and people. Accomplishing either of those from beyond the grave is a tremendous undertaking; accomplishing both, even more so. There may not be a way to avoid an ugly proceeding, but if there is, it would be a well-thought trust.

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