Question: I have been keeping up with the Anna Nicole Smith fiasco because I have been fascinated with the legalities about custody that have arisen when one parent dies. I have read that the baby’s grandmother has asked the father to agree that if he dies, the grandmother gets custody of the child. Are these kinds of agreements legal?

Answer: While we hardly think that the Anna Nicole case is an appropriate study of what really happens in disputed custody cases, your basic question is interesting: Can a parent (or parents) make an agreement with a grandparent (or anyone else) regarding custody if the child becomes an orphan?

First of all, the law of your state of residence as applied to the particular facts will govern this question. That said, while agreements may be signed and sealed, the controlling factor in all custody disputes is the welfare and best interests of the child. In other words, despite a written agreement, if the issue of child custody is submitted to a family court judge, he or she has the authority to approve or not approve the agreement.

It is also interesting to note that third parties, including step-parents, have been allowed to maintain custody actions against a surviving natural parent, and have won custody. That’s right: Being a natural parent does not amount to an automatic grant of custody to the surviving parent if the facts bear out that such an arrangement would not be in the child’s best interests.

While some parents include testamentary guardianship provisions in their wills stating whom they want to take care of a child (and it is not always the other parent), this direction is not binding on a family court judge who, after considering the facts, may well grant custody to another person.

Question: My husband and I signed a separation and support agreement four years ago that was court approved. The agreement states that support for our two children, now seven and nine, would continue until the children reached age 18, entered the military service, or dropped out of school. My ex died in an automobile accident six weeks ago. I have applied for Social Security for the boys, but was wondering if his estate could be made responsible for the support. He remarried and left everything to his new wife, nothing to our children.

Answer: Generally speaking, if the agreement is construed to provide that support continues past death, the answer is probably “yes.” If not, the answer is probably “no.” If your agreement provides that the terms are binding on your husband’s estate and do not terminate on his death, you may well be able to collect from his estate, most probably with an offset for the Social Security your children will be receiving. However, a word of good advice: To get the definitive answer to your question, make sure to secure an opinion from an experienced lawyer in your state of residence.

SoloFact: To avoid these types of post-mortem litigation, parents should consider securing their obligation to pay support through a policy of life insurance. The beneficiary can be either the former spouse or children (which we do not suggest) or a trust for the benefit of the children that is handled by an independent trustee. In this way, a good handle can be maintained and the policy proceeds won’t end up in the wrong checking account.