Naming Guardians: A Critical Step for LGBTQ+ Parents in Estate Planning

For every parent, making sure their children would be raised by trusted, supportive people if something happened to them is one of the most important parts of estate planning. For LGBTQIA+ families, that need often comes with additional layers of legal and emotional complexity.

One of the most powerful — and often overlooked — steps you can take is naming a guardian for your minor children in your Last Will and Testament.

This is especially important for LGBTQ+ parents, whose family structures or legal parentage may not always be fully recognized without clear documentation. And while Nebraska law has made significant progress in protecting LGBTQ+ families, it still matters how you plan.

Let’s walk through why guardian nominations matter, what risks LGBTQIA+ families should consider, and how to protect your children with clarity and intention.

Why Guardian Nominations in a Will Matter

Under Nebraska Revised Statute § 30-2608, parents can nominate a guardian for their minor children in their Last Will and Testament. This guardian would take over personal care responsibilities — in other words, they would raise your child if both parents are deceased or legally unable to care for them.

If you don’t make a valid nomination in a Will, the court decides who will raise your children. That process can:

• Take time

• Cost money

• Lead to disputes among family members

• Result in a decision that doesn’t reflect your wishes or values

A valid guardian nomination gives the court a strong directive. Nebraska courts will generally honor that choice unless clear evidence shows it would not be in the child’s best interest.

Also worth understanding: there’s a difference between guardianship of the person (who raises the child) and guardianship of the estate (who manages money or property the child may inherit). You can nominate the same person for both, or name different individuals depending on their strengths and your goals.

Why LGBTQIA+ Parents Face Unique Risks in Guardianship Planning

Even though legal protections for LGBTQIA+ parents have improved, real-world vulnerabilities still exist. Some of the most common issues include:

• Only one parent is legally recognized: In families where only one parent is on the birth certificate or a second-parent adoption hasn’t been completed, there’s legal risk if the recognized parent dies or becomes incapacitated.

• Unsupportive extended family: In the absence of clear nominations, relatives who don’t affirm LGBTQ+ identities may try to take custody — even if their values don’t align with your family.

• Children who identify as LGBTQ+ themselves: Nominating someone who will affirm and support your child’s identity — especially in your absence — becomes essential.

• Lack of updated documents: Many LGBTQIA+ families have done the hard work of legal adoption or establishing parentage, but haven’t yet updated their estate planning documents to reflect these realities.

All of these concerns can be mitigated by clear, proactive planning — and by naming guardians who reflect your values and understand your family structure.

Questions to Ask When Choosing a Guardian

Beyond geography or financial readiness, here are a few questions LGBTQ+ parents may want to consider:

• Will this person affirm and support my child’s gender identity or sexual orientation?

• Do they understand and respect my family structure?

• Have I had an open conversation with them about my wishes?

• Have I considered how my child might feel living with this person, and if they’re old enough, have I asked?

• Would this person create a home environment that reflects my values and beliefs?

Estate planning is not a one-and-done process. Review your nominated guardians every few years, especially after major life changes.

How Nebraska Courts Treat Guardian Nominations

In Nebraska, guardian nominations in a Will carry strong legal weight. Courts will consider your nomination the default — unless there’s clear and compelling evidence that the person you chose is unfit or not acting in the child’s best interest.

However, this is only possible if the nomination exists and is properly drafted. Verbal instructions or vague statements don’t count.

By having a clear, written Will that nominates guardians, you spare your loved ones from conflict and give your children the best chance of growing up in an environment that reflects who you are and what you hoped for them.

Communication Is Just as Important as Legal Clarity

A written nomination is critical — but so is having conversations with your chosen guardians and your broader family. Make your wishes known. Help people understand why you made the choices you did. This kind of clarity can prevent confusion, conflict, and legal challenges if something happens.

Protecting What Matters Most

Estate planning isn’t just about wealth or property — it’s about protecting your family. For LGBTQIA+ parents, that means being proactive, clear, and intentional when it comes to guardianship.

By naming a guardian in your Will, you ensure your child would be cared for by someone who respects your family, affirms your child’s identity, and provides continuity during a deeply difficult time.

If you’re ready to get started — or need to review an existing Will — we can help.

Call 402-259-0059 or email zach@zandersonlaw.com to schedule a consultation.

Frequently Asked Questions

Do I need to name a guardian in my Will even if both parents are legally recognized?

Yes. If both parents were to pass away or become incapacitated, the court needs a clear nomination to determine who should care for the child. This is especially important if there are extended family members who might challenge custody.

What’s the difference between a guardian of the person and a guardian of the estate?

A guardian of the person makes personal, day-to-day decisions for the child (housing, school, medical care). A guardian of the estate manages money or assets the child inherits. You can name the same person for both or choose different individuals.

Can LGBTQ+ parents name someone outside the family as guardian?

Yes. Nebraska law does not require that a nominated guardian be a relative. You can nominate anyone you trust, as long as the court finds they are fit and the arrangement is in the child’s best interest.

What if my family doesn’t support my child’s identity?

This is exactly why naming a trusted guardian in your Will is so important. Without a clear nomination, the court may turn to family members who are next of kin — even if they wouldn’t create an affirming or safe environment.

Do I still need a guardian nomination if I’ve already done a second-parent adoption?

Yes. While legal parentage is foundational, it doesn’t cover the issue of who would care for your children if something happens to both parents. A Will with a guardian nomination addresses that gap.