You may not immediately connect the two topics, but there is a relationship between divorce and estate planning. The thread that ties these two areas of the law together is that of change. When you go through a divorce, you will invariably experience changes in your life. When you experience changes to your life in the immediate future, you will likely change your long-term future life. It doesn't matter what stage in life you are in; there will be changes that you need to deal with due to your divorce. It is up to you whether you take care of those details during your divorce or are left to handle them on your own once your divorce has finished.
What exactly is a will? It is document-based in the world of estate law rather than in our world of family law. A will directs another person you name (in Texas known as the executor of your estate) to follow your "will" after your passing as far as handling your property and debts. The executor will follow the instructions you provide in your will on how to dispose of property and what obligations will need to be attended to. If you have minor children, your will may indicate your wishes about who will raise those children if your spouse is no longer living.
A lot of people tend to think of a will as something that only older people need. If not older people, then it would be that only people who have money that needs choices. I admit to thinking the same type of things when I was younger. The truth is that if you are over the age of 18, then you need a will. The unpleasant reality makes the prior sentence true: young people die just like older people. If you are a young person and think that you don't need a will, think again.
Even if you have no kids and are getting a divorce right now, it will make your parents' life much easier if they handle your affairs after your death. Imagine your folks trying to access your bank account, notify your creditors or do anything else associated with your estate after your death without a will. They would have to go through the probate process to handle any of your affairs.
For the sake of your family, you need to get yourself a will for the sake of your children. Having a will drafted for you does not have to be expensive or time-consuming. The alternative to not having a choice means that your family or your children will have to go through a lot of trouble to handle your affairs after you pass away. If you have gone through substantial changes in your life (such as a divorce), the need for a will increases even more.
A divorce is a perfect time to update your will.
Do you have a will currently? Do you have life insurance? Or retirement accounts? If you answered yes to any of these questions, then you need to keep in mind that your spouse is likely listed as a beneficiary on these accounts. This means that if something were to happen to you and you passed away, your spouse would be in a position to inherit property from you. This is what you want while you are married, but it would not be ideal if you had just gone through a difficult divorce.
Bearing in mind the significant changes that could have resulted from your divorce, you must look at your will before your divorce is over with. A divorce is a great time to reassess your estate- even if you don't necessarily want to. There is something about looking at a will that causes people to take inventory of their lives and consider their future. A divorce may be the low point in your adult life, in all honesty. However, regardless of how complicated your divorce has been, I would still recommend you reassess your will and determine whether or not it still functions the way it needs to for you.
Unfortunately, I can almost promise you that your will needs to be updated once you complete your divorce. The same would be true of any health insurance, life insurance, retirement, or other accounts where your spouse is listed as a beneficiary. Go through your paperwork and treat the update of these accounts and documents as the final stage of your divorce. It may be unpleasant and time-consuming, but you will be happy that you did so.
Understanding your needs as a golden year's divorced adult
It is becoming more and more common for adults over the age of fifty to get divorced. We can sit here all day and discuss our theories on why this is the case, but you can take my word: golden years divorces are not as uncommon as you may think. Just as with divorces for young people and middle-aged people, divorces for people your age carry their circumstances that can complicate the divorce a great deal.
Your attorney will need to work with you on guiding you through this stage of your life, bearing in mind the changes that your life is undergoing. One of the upsides to your life at this age is that you probably have more money and assets to your name than you did when you were younger. The other side of the coin is that you will need to sort through these issues in a divorce. That can cause your case to take longer and create more opportunities for disagreements between you and your spouse.
What are the issues that impact golden years divorces disproportionately?
Spousal maintenance, health care coverage after the divorce, Social Security benefits, and dividing up your community property are issues that will almost certainly impact your divorce case. It doesn't matter if you and your spouse have been high-income earners or have earned steady incomes throughout your marriage. You likely have a decent-sized estate to concern yourself with as you approach a divorce.
You will need to spend some time discussing with your attorney what your assets are. It may take some effort to dig through your file cabinet or computer files to determine how many retirement accounts you have in play. In recent years, these are things you may not have given much thought to, but you must get everything straight right now.
Much of the time, you will be able to negotiate directly with your spouse on how to divide up your marital property. Keep in mind that property you acquired during your marriage will be considered community property and will be divisible in your divorce. As a result, you and your attorney's main job in the divorce will be to negotiate with your spouse and their attorney on how to do so.
The key to this discussion is to validate each of your assets and then propose how that asset should be divided. Some of your property may have started as separate property but has since become community property due to additions made to the bank account or contributions from the community estate towards its improvements (as it happens in the case of separate property homes, for instance). As a result, you may need to bring in the assistance of an accountant to trace the origins of these sorts of properties to determine whether a judge is likely to decide on their status.
What role did you play in your marriage?
As a married person, whether or not you thought of it this way, you fulfilled a role in your marriage. Ideally, you and your spouse treated each part as essential and valuable. You may have been the primary breadwinner and contributed a majority of the income to your household. You may have worked and donated some money to the household income but not as much as your spouse. Or, you may have been a stay-at-home spouse/parent who supported the breadwinner, cooked meals and cared for the kids daily.
During your marriage, the role you filled will inform a judge how to view several issues should your case make it to a trial setting. Even if you do not have children under 18 that you have to support, you need to worry about yourself in the years following your divorce. As a result, you may need to seek spousal support to bridge the gap between where you are currently and where you need to be as far as income is concerned.
Even though you may not have contributed to the household income directly, it is undoubtedly true that you indirectly did. Think about it: did you work part-time in the early years of your divorce while your spouse went to medical school and earned himself a degree? Did you stay at home to raise the kids so your husband could focus on their medical practice? If so, then you indirectly led to the financial wellbeing of your family even if you set foot in an office or other place of employment.
Your attorney should speak to you early in your case about the possibility that you may be in line to receive spousal support due to the divorce. Texas has pretty clear rules about aid eligibility and how much and how often you can be paid. Ask your attorney to go through these elements with you so that you understand them fully. You do not want to find yourself in a position where you are surprised that the amount of spousal maintenance you stand to receive is less than what you had anticipated.
Your community estate may also be divided up in a way that you end up receiving the lion's share of the property as a result of your divorce. This frequently happens in cases where your spouse has a greater level of education and income potential compared to you. Essentially, it is presumed by judges that he will be just fine due to his high-paying job while you need the immediate benefits that a more significant share of your community can provide to you. Depending on the size of your estate, this could be highly significant.
Closing thoughts on divorce, your golden years, and estate planning
Many times you will be able to work with your divorce attorney to help you draft your will. This is not required, but if your divorce attorney is competent in drafting wills, then you may want to consider adding on this feature to the end of your divorce. After all, nobody will know your financial status better than your divorce attorney. Additionally, it would help if you spoke to your attorney at the very beginning of the case about any concerns you have with dealing with divorce in your golden years. Do not feel like you are alone in this process. Your attorney and their staff are here to help you.
If you have any questions about divorce, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week here in our office. These consultations are an excellent opportunity for you to ask questions and have them answered by an experienced family law attorney. We appreciate the opportunity to serve our community and look forward to meeting with you to discuss how we can help you and your family. Our attorneys are inside the family courts of southeast Texas every day and do our best to serve our clients with respect and diligence.