Author – Kelley Bannon Lashley
I recently partnered with our friends at Zonder Family Law Group to explore the estate planning implications of “gray divorce” – a divorce involving spouses over 50. Following is a recap of the blog, but to get all of the details and read the complete article, click here.
Couples facing a gray divorce who have an existing estate plan need to remember a few important rules:
- Update Your Estate Plan – If a divorce has not been finalized when a spouse dies, the parties are treated as still being married. Therefore, it is imperative you update your estate plan as soon as practically possible.
- Gray Divorce and Estate Planning ATROs – Once your divorce proceeding is initiated, there are limitations on what changes can be made to your estate plan. Pursuant to Family Code Section 2040, Standard (Automatic) Temporary Restraining Orders (“ATROs”) are placed into effect upon filing for divorce.
- Severing a Joint Tenancy – With written notice to your spouse, you may eliminate your spouse’s rights of survivorship to property.
- Revoking a Joint Living Trust – Another exception to the ATROs is the ability to revoke the joint living trust that you had set up with your spouse, on the condition that you provide written notice.
- Modifying Your Financial POA and Health-Care Directive – You may also modify your financial durable power of attorney and health directive, without notice or consent.
- Post-Divorce Considerations – Once your divorce is final, besides funding your new trust, you do not want to forget to update the beneficiaries on your retirement plans and life insurance policies.
- Conflict of Interest Issues – One final issue to keep in mind is that your joint estate planning attorney represents both spouses and cannot take sides in a divorce.
If you need Estate Planning or Family Law advice, the teams at Deka Law and Zonder Family Law Group (ZFLG) are here to help. Both Deka and ZFLG believe in a holistic approach to divorce and are committed to navigating you through this time.