The option for parents to express their wishes in advance under Article 144 of the Family Code (hereinafter: DZ) is a new provision, as the previous Family Code did not address this matter. This provision allows parents to designate in advance the persons who would assume responsibility for their children in the event of their death or permanent inability to exercise parental care.

The selected individuals must meet the conditions set forth in the DZ; otherwise, the parents’ will cannot be taken into account. Among the relatives whom parents may designate to assume parental responsibility, only blood relatives in the direct line up to the second degree and blood relatives in the collateral line up to the fourth degree are eligible. However, parents cannot use this advance directive to address other matters, such as the child’s future upbringing, care, visitation, the manner of exercising parental care, or child support.

Since this provision applies in cases where both parents have died, the court plays a crucial role in determining which expressed will will be honored. In doing so, the court may take the parents’ will into account only if it is in the child’s best interest.

Article 144 of the DZ provides that, in the event of death or permanent inability to exercise parental responsibility, parents may express their will in advance regarding: (i) the person in whose custody the child should be placed, (ii) the relative to whom the parental responsibility should be attributed, (iii) the adoptive parent, or (iv) the guardian. The validity of the parental advance expression of will shall be assessed in the same way as the validity of a will in accordance with the Act governing inheritance, i.e., the Inheritance Act (hereinafter: ZD). If the parental expressions of will differ between the parents, a court shall decide which document shall be considered. The court shall consider the advance expression of will if it is not counter to the best interests of the child.

When assessing the validity of the advance expression of will by parents, the rules of the ZD governing the validity of a will, the testator’s age, the testator’s capacity, and the prescribed form of a will (Articles 59 through 77) must be taken into account in accordance with the second paragraph of Article 144 of the DZ. However, the court must, ex officio, verify whether such advance ecpression of will by parents exists, as provided for in the second paragraph of Article 95 of the ZNP-1.

Under Article 62 of the ZD, only a will that is made in a form determined by an Act and under the conditions determined by an Act shall be valid..Since the law does not regulate joint wills and does not list them among the permissible forms, they could be considered invalid. However, Zupančič notes that case law generally considers invalid only those joint wills in which two persons (most often spouses) mutually determine their inheritance, but not those in which they jointly dispose of their estate for the benefit of a third party (e.g., a child).¹

Based on this, even in the theory regarding the advance expression of will by parents, there is a concern that, under a strict interpretation of Article 62 of the ZD, the parents would not be able to validly express their will jointly in a single document, since a joint will is not recognized as a permissible form. Nevertheless, this issue can be resolved by considering to whom such a will is addressed. If the parents jointly dispose of their assets for the benefit of a third party (the child), this constitutes a permissible form of disposition, even if it is recorded in a single joint document.

Recent case law also confirms this understanding, as it recognizes the validity of joint written wills when all formal requirements are met and the testators’ intent regarding the designation of third-party heirs is clearly evident from them. Therefore, it seems reasonable to consider the parents’ jointly expressed will, if formulated in accordance with legal requirements, to be valid as well, since there is no justifiable reason not to take such a will into account.

The third paragraph of Article 144 of the DZ addresses situations where the advance expression of will by parents conflict, and provides that the court shall decide which wish is to be taken into account. Since the law does not specify any particular criteria for such a determination and judicial practice has not yet been established, the question arises as to what criteria the court should use in its assessment. According to Weber, such a decision can only be understood through the lens of the child’s best interests, and the court will likely seek the assistance of an expert in this regard.² This interpretation is convincing because, in all matters of parental care, the child’s best interests are of paramount importance; these are assessed in light of all the circumstances of the specific case and take precedence over the interests of the parents or the child.

When the situation described in the first paragraph of Article 144 arises, the court must, ex officio, verify whether the parents have previously expressed their wishes, specifically in the registry where such information is recorded. ZNP-1 does not clearly specify which registry is meant, but it is clearly not the court registry referred to in Article 95. Since the rules on wills apply to the form of such a will, the relevant registry could be the central register of wills at the Notary Chamber of Slovenia. However, this register does not contain all wills, as holographic wills or wills drawn up before witnesses are not necessarily entered into it. Although the ZNP-1 provides for the establishment of a special registry for advance directives, its absence does not prevent the court from verifying the possible existence of such a ”will” at the social services center or at the competent district court, where wills are kept.

The obligation to verify under Article 95 of the ZNP-1 applies in cases of the death or permanent incapacity of one or both parents, which should be understood as a situation in which the child is left without both parents or without the sole remaining parent. This also follows from the provisions of the DZ regarding the exercise of parental care.³ If only one parent dies or if parental care is revoked from only one parent, it falls to the other parent. Since this parent exercises parental care independently in such a case, the conditions for transferring the portion of care that would otherwise belong to the absent parent are not met, and therefore there is no basis for taking into account the absent parent’s previously expressed will.

The institution of the advance expression of will by parents under Article 144 of the DZ represents a significant innovation that enables parents to influence the future care of their children while they are still alive. Despite certain unresolved issues regarding the form, storage, validity, and assessment of potentially conflicting wishes, it is clear that the court plays a decisive role in its application, and must always act in the best interests of the child. It is precisely this fundamental principle that ensures the institution is applied in a manner that protects the child’s rights and well-being.

If you are facing questions regarding your parents’ advance directives or wish to make timely and appropriate arrangements for the care of your children in the event of unforeseen life situations, our law firm can assist you.

With our professional expertise and personalized approach, we advise you on drafting a legally valid declaration, alert you to potential pitfalls, and ensure that your wishes are expressed clearly and in accordance with the law. Our goal is to provide you with legal certainty and peace of mind regarding the future of your loved ones.

[1] Zupančič, K., Žnidaršič Skubic, V, Dedno pravo, 2009, page 127-128.

[2] Švigelj Jure, Družinski zakonik (DZ) s komentarjem, Lexpera d.o.o., GV Založba, 2024.

[3] See Article 151 of the DZ.