Who would raise your children if something happened to you both?

It is not the kind of question that comes up over dinner. Yet what happens to children if parents die is a thought that, for many families living in Spain far from their relatives, sits quietly at the back of the mind. If something happened to both of us, who would look after the children? And who would decide?

The first thing to know is that nobody becomes a guardian automatically. A grandparent, an aunt or a close friend does not simply step into the role the next day. In Spain, a guardian must be formally appointed through a court procedure, with the child’s best interests as the guiding principle. Even when the whole family agrees, the court must be involved.

That might sound worrying. But the judge does not start from a blank page. Parents can name the person they trust in a will, and under the Civil Code the court is, in principle, bound by that choice. It could depart from it only with a reasoned decision based on the child’s best interests. It would seem, then, that parents who plan ahead have a real say in what happens next. And if nobody challenges the choice, the procedure may be fairly straightforward.

Where can things get complicated? Perhaps in two situations. The first is a couple who have each named a different person, without ever talking about it. The court would try to apply both wishes together where they are compatible. If they are not, the judge will decide. A single conversation between partners could avoid that.

The second is the international family. If your children live in Spain, it seems likely that the Spanish courts would be the ones to act, even if the will was signed in London, Berlin or Amsterdam. How much weight a foreign will carries on this point is something to study case by case. And it may be worth reviewing an old will written before the move to Spain.

Although none of this might be pleasant to think about… a talk with your partner and a visit to a lawyer can turn a frightening unknown, into a decision taken by the people who know your children best. If you would like to talk it through, reach out to us today, and we will gladly assist you in this process.

You may be interested in the following services and articles:

We analyse the recent Supreme Court ruling on Curatorship and De facto Guardianship. Support measures for people with disabilities. Expert legal advice.

Will and Durable Power of Attorney: Key Tools to Protect Your Future and Your Family’s. Expert Legal Advice

The power of attorney in Spain. General information on how to make it, types, costs, requirements, etc.

Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185

E-mail: info@white-baos.com

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