Gray Divorce and Estate Planning

Last week we likely surprised you and made you do a double take by stating that divorce rates have doubled since 1990 for adults over 50. This trend, called Gray Divorce, has caused Hurley Elder Care Law to take time to look at our own practice and make sure we educate our clients on the many protective legal measures that should be considered regarding estate and long-term care planning.

Gray divorce and your Will

When someone meets with us who has had a gray divorce, or is in the middle of one, we discuss their estate plan which includes their Will, General Durable Power of Attorney for Financial Matters, Revocable or Irrevocable trusts. One of the first questions we are asked is if the Will is still valid after a divorce. Any Will provisions leaving property to a former spouse are automatically revoked when the final divorce decree is issued, and the property is passed to an alternate beneficiary. In simpler language, your Will is effectively unusable after a divorce.

The next question is usually, “should I draft a new Will while going through a divorce?” If you should pass away before your divorce is finalized, your spouse will still be entitled to inherit either under your Will. If you don’t have a Will, your estate might also pass to your spouse through the laws of intestacy. Preparing a “Will in contemplation of a divorce” is an option to protect assets from your soon to be ex-spouse.

Another consideration is your General Durable Power of Attorney (POA). Chances are you and your spouse executed POAs during your marriage. Your spouse may have access to all your accounts and assets. This may be the case even if the assets are solely in your name. If so, you can revoke the POA and execute a new one.

Gray divorce and your Trust

If you have a Revocable Living Trust you should restate your trust to change or remove provisions in favor of your spouse and their family. If you and your ex-spouse have a joint revocable trust, the current trust should be revoked and a new trust should be drafted. In addition, if you named your spouse as a trustee of your revocable trust, you would likely want to remove them and designate a new trustee.

Irrevocable Trusts are a bit different. The Georgia Trust Code now allows for the amendment of irrevocable trusts in limited circumstances. You can also negotiate with your spouse and get them to renounce their rights under your trust as part of your divorce settlement.

Family law attorneys are certainly important during your divorce, but don’t forget you aren’t quite done protecting yourself legally until you address your estate plan with an experienced attorney. Please call Hurley Elder Care Law at 404-843-0121 to discuss your situation.