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Do I need a will?

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 to your life. When you experience changes to your life in the immediate future you will likely experience changes to your long-term future life as well. It doesn’t matter what stage in life you are in there will be changes that you need to deal with as a result of 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 a document that is based in the world of estate law rather than in our world of family law. A will directs another person that you name (in Texas known as the executor of your estate) to follow your “will” after your passing as far as the handling of your property and debts. The executor will follow the instructions you provide in your will as far as how to dispose of property and what debts will need to be attended to. If you have minor children your will may indicate your wishes about who will raise those children in the event that 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 need wills. 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. Here is the unpleasant reality that 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 even if you are getting a divorce right now a will would make the life of your parents much easier if they have to 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 in order to handle any of your affairs. 

For the sake of your family, for the sake of your children you need to get yourself a will. Having a will drafted for you does not have to be expensive or time consuming. The alternative to not having a will 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) then the need for a will increases even more so. 

A divorce is 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 would not be ideal if you have just gone through a difficult divorce.

Bearing in mind the significant changes that could have resulted from your divorce it is essential that you 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 difficult 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 years 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 for it: 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 with them circumstances that can complicate the divorce a great deal. 

Your attorney will need to work with you on how to guide 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 opportunity 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/or your spouse have been high income earners or have earned steady incomes over the course of your marriage. It is likely that you 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 for you to dig through your file cabinet or computer files to determine how many retirement account you have in play. These are things you may not have given much thought to in recent years, but it is important you 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 martial property. Keep in mind that property that you acquired during the course of your marriage is going to 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. 

Valuing each of your assets and then proposing how that asset should be divided in the key to this discussion. Some of your property may have started off 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 property to determine whether a judge is likely to determine their status. 

What role did you play in your marriage?

As a married person, whether or not you thought of it this way or not, you fulfilled a role in your marriage. Ideally you and your spouse treated each role as important and valuable. You may have been the primary breadwinner and contributed a majority of the income to your household. You may have worked and contributed 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 on a daily basis. 

The role that you filled during your marriage will inform a judge as to how to view a number of issues should your case make it to a trial setting. Even if you do not have children under the age of 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 in order 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 as a result of the divorce. Texas has pretty clear rules about eligibility for support as well as 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 greater share of your community can provide to you. Depending on the size of your estate this could be extremely 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, you should speak 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 is 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 a great 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 being to meet 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. 


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