Divorce has been around for a long time. But “gray divorce,” a relatively new term, refers to divorce of an older (gray-haired) couple. As with any divorce, your life will change. And any major life changes mean that it’s time to review your estate plans. Gray divorce may offer a few new wrinkles over a divorce that happens earlier in life.
Wills and Other Documents
Norma divorced her husband, Ray, after 42 years of marriage. However, she just never got around to changing her Will. When Norma passed away several years after the divorce, her family tried to probate her Will. Her ex-husband was supposed to receive all her estate other than a few small bequests to other family members.
Now, by Alabama law your ex-spouse is considered to have “pre-deceased” you if you pass away before changing your Will. It does not matter how long you were married before the divorce. Any bequests to your ex-spouse are revoked as soon as the split is finalized. In Norma’s case, her ex-husband will not receive any of her probate estate.
However, a Will is only one of your estate planning documents.
A power of attorney is a legal document where the principal (you) designates another adult to make decisions for them. With a durable power of attorney, the agent’s authority continues if the principal becomes incapacitated. If you named your spouse as your agent – as many people do – you need to change this document as soon as possible.
Two documents commonly used as advance directives are:
- The health care proxy in which you name someone to make health care decisions for you; and
- The living will in which you state your wishes regarding end-of-life treatment and name someone to speak for you if necessary.
As you might imagine, both documents should be changed as soon as possible.
Norma failed to change her health care proxy after divorcing Ray. She became incapacitated before her death. Ray was unwilling to make health care decisions for her, so her family had to go to court to get authority to act for her. The family was fortunate that Ray was not an unscrupulous person. Armed with Norma’s unchanged durable power of attorney, he could have cleaned out her bank accounts before her death.
Beneficiary Designations
Many, if not all, of your financial accounts and insurance policies allow you to state who will receive the funds in your accounts upon your death. Effective September 1, 2015, beneficiary designations to an ex-spouse are revoked unless the designations were specifically accounted for in the divorce settlement.
However, this does not mean you can forget about changing your beneficiary designations. In Norma’s case, her designations naming Ray were cancelled. However, she failed to name successor beneficiaries. Instead of transferring automatically to her heirs, the funds in her accounts were held up in probate.
Incapacity Planning
Hopefully, an older couple has done at least some incapacity planning. This may include buying long-term care insurance or establishing a living trust. Any plans made for incapacity will need to be untangled during the divorce negotiations.
Funeral and Burial Plans
Older people are more likely to have pre-paid funeral and burial plans. This type of plan will need to be negotiated. Even if a couple spent many years together, it does not mean they want to spend eternity next to each other.
Divorce Is Tough at Any Age.
The attorneys at Miller Estate and Elder Law have the experience you need to get the estate plan you deserve. Contact Miller Estate and Elder Law at 256-251-2137 to schedule an appointment or fill out our convenient Contact Form. We help clients in Anniston, Talladega, Birmingham, Gadsden and surrounding communities.