SUMMARY OF THE ARTICLE
1.- What parents can decide.
Parents may appoint a guardian for their minor children in a will or in a notarial public document. They may also give instructions about the child’s person and assets. If both parents die, guardianship must be constituted before a judge.
2.- To what extent does it bind the judge.
In principle, the parents’ appointment binds the court, unless the child’s best interests require otherwise, which the judge would have to justify. A contentious trial is not necessarily required. If each parent appointed a different person, both provisions apply together where they are compatible.
3.- Foreign families and practical advice.
If the family is foreign, it is advisable to study which courts will intervene and what value a will made in another country has. It is advisable that both parents appoint the guardian, clearly identified, with provisions for the child’s assets.
It is the question many parents avoid asking themselves: “who gets my kids if I die?”. And, even harder: what happens if we both die? Many families (Spanish, British, German, French, Dutch…) live in Spain far from their relatives. And they fear that a stranger may end up deciding. However, the law allows you to plan ahead by naming a guardian in a will. In this week’s article we look at how to do it.
Can parents choose who will look after their children?.
The answer to “who gets my kids if I die” depends on what you have left in place. Parents may appoint a guardian in a will or in a notarial public document. They may also give other instructions about the person or the assets of their minor children. Article 201 of the Spanish Civil Code provides for this. When both parents die, and the child is left without parental authority, guardianship must be constituted.
Is what you decide binding on the judge?.
In principle, yes. The parents’ appointment is not a mere recommendation. We understand that it is the cornerstone of the whole system.
Art. 202 C.C. “The appointments referred to in the previous article shall bind the judicial authority when constituting guardianship, unless the child’s best interests require otherwise…”
That is, the judge could not freely prefer another relative simply because they think it better. To depart from the choice, you make in your will, there must be a reason linked to the minor’s best interests. And it must be explained in a reasoned decision.
Is it necessary to go to court to formally constitute the guardianship?.
Yes. A person does not automatically become guardian. A court appointment is required. Guardianship is constituted through voluntary jurisdiction proceedings. The relatives called to it, and whoever has the child in their care, must promote it. If nobody challenges the appointment, the procedure can be straightforward. But it could become complicated if a relative opposes. Or if there are doubts about the suitability of the person appointed. In those cases the judge will assess the circumstances of the case.
What if each parent appointed a different person? Or if the family is foreign?.
If each parent appointed a different person, in principle the provisions apply together (provided they are compatible). If they are not, the judge will decide, taking into account the child’s best interests.
It is also worth considering what happens if the parents are not Spanish, or if the will was made in another country (United Kingdom, Germany, France, the Netherlands…). We understand that, as a general rule, protective measures for the child fall to the authorities of the country where the child habitually resides (1996 Hague Convention and Regulation (EU) 2019/1111). Therefore, if the children live in Spain, the Spanish courts would in principle intervene.
Conclusion.
Do not leave the question “who gets my kids if I die” unanswered. Providing for a guardian in a will can avoid uncertainty and family conflict. At White-Baos Lawyers we are experts in estate planning and succession. We will study your case and offer you expert legal advice. Do not hesitate to contact us.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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