Estate planning for couples going through a gray divorce

According to data from the U.S. Census Bureau and other surveys, the divorce rate for older Americans — those over 50 — has doubled. Many in that age group have estate plans in place, involving wills, trusts, or a combination of legal instruments. That begs the question: how does divorce affect estate planning?

Although a divorce court will divide the marital estate between spouses, there may be lingering issues affecting wills and trusts — even after the divorce has become final. 

For example, a will may have designated a former wife or husband as a beneficiary. Since that individual no longer holds that marital status, he or she most likely has forfeited any legal claim to the former spouse’s estate. If no other beneficiaries are named in the will, the estate might revert to the state, and the probate court may be forced to apply the laws of intestacy.

A trust does not have to go through probate, but the trust language may still contain language granting a former spouse control over the trust assets. Even if a divorce court has divided the shares of the trust, an attorney that focuses on estate planning might recommend that each spouse divide the trust into two separate trusts, thereby allowing each spouse to write terms governing the trust. 

Similarly, if a trust was created for the benefit of a couple’s children, the other spouse may have been named a trustee. After divorce, it may be undesirable to have the spouse retain control over those trust assets. An attorney can help individuals who are going through a divorce or who have recently divorced re-examine all of the named beneficiaries in their estate planning documents. 

Washington Post, “Till Death Do Us Part? No way. Gray Divorce on the Rise,” Brigid Schulte, Oct. 8, 2014

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