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Custody of son if I die in Massachusetts?

My wife and I got divorced two years ago and I got sole custody of our 5 year-old son. My question is if I put it in my will that my brother will take care of my son if I die, will that happen or can my wife get custody if she wants? Thanks.

Editor's Response

You need to understand an important distinction:  Under Massachusetts law, you can have sole physical custody, but still have joint legal custody.  That is usually the way the probate and family court will arrange  things unless there was some reason, such as abuse, to strip your ex of her parental rights.  But as long as your wife retained her parental rights, she will probably be able to get custody if you die.

Having said that, you should definitely make arrangements in your estate planning documents for the care and custody of your child.  You never know what might happen.  Even if your wife retains her parental rights, she might pass away tomorrow.  Or, she might have no interest in raising the child.  As always, you should contact an experienced Massachusetts estate planning lawyer for this and any other questions you may have.  Good luck. 

 

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