If Both Parents Die, Who Raises Your Kids in Florida, and How Do You Make It Stick?

Jess and Marcus's question: what actually happens to the kids?

Jess and Marcus are a composite example, not real clients, but their situation is one I hear often in Winter Garden and across Central Florida. They are 38 and 40, raising three children under ten. Jess has a sister in Colorado. Marcus's parents are in Deltona. Neither set of relatives has ever discussed, out loud, who would step in if something happened to both parents at once.

Under Florida law, guardianship is a court process governed by Chapter 744, Florida Statutes, in which a judge appoints someone to make decisions for a person, including a minor child, who has no parent able to act for them. If Jess and Marcus do nothing, that decision would fall to a judge weighing petitions from whichever relatives came forward, informed by whatever evidence the court had about the family's wishes. That is a much less certain outcome than the one Florida law lets parents create for themselves.

The pre-need guardian designation: naming your choice in writing

Florida gives parents a specific tool for exactly this problem: the pre-need guardian designation for a minor under F.S. 744.3046. Both parents, or the surviving parent if one has already died, can sign a written declaration naming who should serve as guardian of their minor children if the last surviving parent becomes incapacitated or dies. The declaration can also name a backup guardian in case the first choice is unable or unwilling to serve.

• The declaration must reasonably identify the parents and the person being named.
• It must be signed by the parent or parents in front of at least two witnesses, present at the same time.
• It can name a guardian of the person, a guardian of the property, or both, and those roles do not have to go to the same individual.

For Jess and Marcus, this meant sitting down together and deciding, in writing, that Jess's sister in Colorado would raise the children day to day, with Marcus's parents named as an alternate. That single document does not by itself make the appointment final, but it tells a Florida judge, in the parents' own words, exactly what they wanted.

How the court confirms the designation

A pre-need designation is not automatic. When the named guardian actually needs to step in, that person must petition the court, generally within 20 days of taking on the role, asking the judge to confirm the appointment. The court reviews the petition and, if it finds the nominated guardian qualified, confirms the appointment.

This is where the paperwork Jess and Marcus signed does real work. A written, properly witnessed pre-need designation creates a strong presumption in favor of the parents' choice. A judge does not start from scratch weighing competing relatives against each other; the judge starts from what the parents already decided, and only departs from it if the named person is clearly unfit or unable to serve. That is a very different process from an open-ended custody fight among grieving family members.

Separating who raises the kids from who manages the money

One of the most useful features of Florida law here is that guardianship of the person and guardianship of the property do not have to be the same person. The guardian of the person makes day-to-day decisions: where the children live, go to school, receive medical care. The guardian of the property manages any money or assets the children inherit, and reports to the court on it.

Jess and Marcus decided that Jess's sister would be the right person to actually raise the kids, but they did not want her also managing life insurance proceeds and a future inheritance without any oversight or structure. Instead, they set up a revocable trust that will hold and manage assets for the children, with a trustee responsible for spending on their behalf according to terms Jess and Marcus wrote themselves. This avoids a court-supervised property guardianship (which becomes relevant for minors receiving more than a modest sum, and involves ongoing filings) and gives the family more privacy and flexibility than a guardianship of the property would.

• Guardian of the person: raises the children, makes school and medical decisions.
• Trustee: manages the money under the terms of the trust, separate from the guardian's role.
• These roles can go to different people, which is often exactly the point.

Can an out-of-state relative actually serve?

This was Jess and Marcus's biggest worry, since Jess's sister lives in Colorado, not Florida. Florida generally requires a guardian to be a Florida resident. But the law makes an exception: a nonresident may serve as guardian if related to the ward by blood, marriage, or legal adoption within the degrees the statute lists, including a spouse, sibling, aunt, uncle, niece, nephew, or a lineal relative such as a grandparent, parent, or grandchild.

Jess's sister qualifies because she is related to the children by blood, as their aunt. That relationship is exactly what the statute is designed to accommodate. If Jess and Marcus had instead wanted to name a close family friend with no blood or marriage relationship who lived out of state, that friend would not have been eligible to serve, and they would have needed a Florida resident in that role instead.

Keeping the plan current as the kids grow

A pre-need designation and a will are not one-and-done documents. The right guardian for a toddler may not be the right guardian ten years later, once relationships change, health changes, or a named alternate is no longer available or willing. I generally suggest Florida parents revisit these documents whenever there is a major family change: a move, a divorce in the extended family, a serious illness, or simply every few years as a matter of habit.

Jess and Marcus put a reminder on their calendar to review their designation and trust every few years, and sooner if anything changes with Jess's sister or Marcus's parents. That small habit is often what keeps a good plan from becoming an outdated one.

This article is for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. Florida estate, elder, probate, and real estate law are fact-specific and change over time. Consult a licensed Florida attorney about your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.