Guardianship Clauses in Tennessee Estate Plans: Protecting Your Children's Future

When most people think about estate planning, they focus on wills, trusts, and how their assets will be distributed. But for parents of minor children, one of the most crucial components of an estate plan has nothing to do with money—it's about naming a guardian for your children if something happens to you.

What Is a Guardianship Clause?

A guardianship clause is a provision in your will that designates who you want to raise your minor children if both parents die or become incapacitated before the children reach adulthood. In Tennessee, as in most states, this decision is too important to leave to chance or to the courts.

Without a guardianship designation, a Tennessee probate or family court will decide who raises your children based on what the judge believes is in the child's best interest. While courts generally prefer family members, the person chosen might not be who you would have selected.

How Guardianship Designations Work in Tennessee

Tennessee law allows parents to nominate a guardian for their minor children through their will. This nomination isn't automatically binding—the court must still approve the appointment—but judges give substantial weight to the parents' wishes unless there's a compelling reason not to honor them, such as the proposed guardian being unfit or unwilling to serve. Without a guardianship designation, the court considers adult siblings of the minor, close relatives, and then other people.

It's important to understand that a guardianship clause only becomes effective upon your death. If you become incapacitated but are still living, different legal mechanisms come into play, which is why comprehensive estate planning often includes powers of attorney and advance healthcare directives as well.

Personal Guardian vs. Property Guardian

Tennessee law distinguishes between two types of guardianship. A guardian of the person makes decisions about the child's daily care, education, and upbringing. A guardian of the property manages the child's financial affairs and inheritance. You can name the same person for both roles, or you can split these responsibilities if you believe different people would be better suited for each role.

Many parents choose to name one person as the personal guardian (perhaps a sister who has children of similar ages) and another as the property guardian (maybe a financially savvy brother or a professional trustee). This arrangement can provide checks and balances while ensuring your children receive both loving care and sound financial management.

Choosing the Right Guardian

Selecting a guardian is one of the most difficult decisions parents face in estate planning. You're essentially choosing who will raise your children and instill the values you hold dear. Consider these factors:

Shared values and parenting philosophy. Will this person raise your children with similar moral, religious, or educational values? Do they have a compatible parenting style?

Practical considerations. Does the potential guardian have the physical, emotional, and financial capacity to take on additional children? Where do they live, and would your children need to relocate?

Relationship with your children. Do your children know and trust this person? A loving aunt who sees the kids regularly might be a better choice than a wealthy but distant relative.

Age and health. Will the proposed guardian be able to care for your children through their teenage years and into young adulthood?

Willingness to serve. Have you discussed this responsibility with the person? Never assume someone will be willing to take on this role without having an honest conversation first.

Naming Alternate Guardians

Life is unpredictable. The person you name as guardian today might be unable or unwilling to serve when the time comes. That's why Tennessee parents should always name at least one alternate guardian (sometimes called a successor guardian) in their wills. Some parents name several alternates in order of preference to ensure there's always someone available.

What Happens After You Name a Guardian

After your death, the person you've named as guardian must petition the court to be formally appointed. The court will review the nomination, consider the child's best interests, and typically honor your wishes unless there's evidence that doing so would harm the child.

The court process ensures that the proposed guardian undergoes appropriate scrutiny and that your children's welfare remains the priority. While this might seem like unnecessary bureaucracy when you've already made your wishes clear, it's an important safeguard as things can change since you had your will drafted.

Updating Your Guardianship Designation

Your guardianship clause isn't set in stone. Life changes—people move, relationships evolve, circumstances shift. You should review your guardianship designation every few years or whenever a major life event occurs, such as divorce, the birth of another child, a move to a different state, or a change in your relationship with the proposed guardian.

Updating your guardianship designation is as simple as executing a new will with the revised provisions. In Tennessee, your most recent valid will supersedes earlier versions.

Addressing Potential Conflicts

If you're divorced or separated, guardianship becomes more complex. In Tennessee, if one parent dies, the surviving parent typically has the right to custody regardless of what the deceased parent's will says. However, if the surviving parent is unfit, the court may consider the deceased parent's nomination. If you have serious concerns about your ex-spouse's ability to parent, you should document your reasoning and discuss the situation with an estate planning attorney.

You might also worry about family disputes over guardianship. While you can't completely prevent conflict, a clearly worded guardianship clause that includes your reasoning can help minimize disagreements. Some parents also write a separate letter (not legally binding but influential) explaining their decision in more detail.

Financial Considerations

Raising children is expensive, and you don't want your chosen guardian to face financial hardship because of this responsibility. Consider these options:

Life insurance. A policy with sufficient coverage can provide funds for your children's care without depleting your estate.

Trusts. Rather than leaving money directly to your minor children, you can establish a trust that provides for their needs while preventing mismanagement. The trustee can distribute funds to the guardian for the children's benefit.

Clear instructions. If you're naming different people as personal and property guardians, provide clear guidance about what expenses should be covered and how distributions should be handled.

Letter of Intent

While not legally required, many Tennessee parents supplement their formal guardianship clause with a letter of intent. This informal document can include information about your children's routines, medical history, educational preferences, religious upbringing, and other details that would help a guardian provide continuity in your children's lives. You can update this letter as often as needed without modifying your will. Be aware that this document only serves as guidance. It is not legally binding.

Why Work with an Attorney

While Tennessee law doesn't require you to hire an attorney to create a will with a guardianship clause, the stakes are high enough that professional guidance is usually worthwhile. An estate planning attorney can ensure your documents are properly executed according to Tennessee law, help you think through scenarios you might not have considered, and coordinate your guardianship designation with other estate planning tools like trusts and life insurance policies.

The Bottom Line

For parents, few estate planning decisions are more important than naming a guardian for your children. A thoughtfully crafted guardianship clause gives you control over who will raise your children if you can't, provides guidance to the courts, and offers peace of mind that your children will be cared for by someone you trust.

Don't put this off. Even if your children are young and you expect to be around for decades, unexpected tragedies happen. Taking the time now to designate a guardian—and having honest conversations with your chosen guardian about this responsibility—is one of the most loving things you can do for your children.

Your estate plan should grow and change with your family, so revisit these decisions regularly. But most importantly, make the decision in the first place. Your children's future may depend on it.