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The Heritage Law Center, LLC Blog

“Gray Divorce” Impacts Estate Planning

POSTED ON: April 27, 2020

“Gray divorce” is a term referring to the demographic trend of an increasing divorce rate for older couples in long-lasting marriages. According to the Pew Research Center, the rate of divorce for couples over the age of 50 has almost doubled since 1990.

Some reasons for gray divorces: divorce has less of a stigma than it used to, life expectancies have increased, older adults have become more focused on living life to the fullest, many women earn their own income and can support themselves, and there are more opportunities to potentially find a more satisfying partner.

Divorces between older adults can have more complicated challenges that younger couples might not deal with. When it comes to estate planning, it’s likely that an older couple has a more complex estate plan, and that each spouse is integral to the other’s estate plan. Here are estate planning items that need to be taken care of:

Wills
Once your divorce is final, Massachusetts’ law revokes your will if your ex-spouse is in it. But during the divorce process, you remain legally married and your spouse is legally entitled to any assets you’ve left them in your will. If you want your spouse out of your will, then as soon as you determine your marriage is over, review your will and update it based on how you want your assets to be distributed, who you want your executor to be, and who you want as trustees of your trust. Also, if you get a divorce and forget to update your will, Massachusetts intestacy law will determine who gets the assets that your out-of-date will left to your spouse.

Health Care Proxy
Once your divorce is final, your health care proxy is legally revoked if your ex-spouse was named as your agent in the document. But during the divorce process, your health care proxy is still valid, and your spouse can make decisions about your health care if you become unable to make those decisions yourself. If you don’t want that to happen, you need to update your health care proxy. And if you do want to keep your ex-spouse as your health care proxy, you’ll have to update this document after your divorce. You should also do a new HIPAA form, removing the ex-spouse as a person having access to protected health information, and making sure you do have someone on the form who can access that information.

Durable Power of Attorney
A durable power of attorney allows you to name someone you trust to make legal and financial decisions for you in case you become incapacitated. The goal is to ensure that your finances will be managed properly and for your benefit. The person you designate can do everything you could do for yourself, such as check writing, collecting rents, repairing your home, selling your house or car, or trading stocks or other investments. During a long period of disability, you might not feel comfortable with your soon-to-be ex-spouse managing your financial and legal affairs. Again, if you do want to keep your ex-spouse as your power of attorney, you’ll have to update this document after you divorce.

Retirement Plans, Life Insurance, and Other Investment Assets
In Massachusetts, once you’ve started a legal divorce proceeding, there is a restraining order that prohibits any changes in beneficiaries of life insurance or pension or retirement plans. Once your divorce is final, you can update your designation of beneficiaries, keeping in mind any agreements you made in your divorce decree. There are assets that aren’t restricted once you’ve filed for divorce, such as private annuities, IRAs, Employee Stock ownership plans, U.S. Savings Bonds, and you should look into which ones you can change, or whether they require your spouse’s consent.

Going through a divorce can be devastating, but it’s important to update your estate planning documents so your current wishes will be met. We can help you easily update your estate plan. Just call us at (617) 299-6976 or send an email to mkarr@maheritagelawcenter.com.