Estate Planning Considerations in Gray Divorce

What Estate Plan Updates Are Needed

Typically, couples who have been married for some time, especially those over 50 years old, have an estate plan that assumes the other spouse will survive and receive the bulk of the marital estate. With a pending divorce, spouses must revisit their existing estate plans and make changes. Some estates can be quite complicated. For tax purposes, a couple may have all of their assets in a living trust, for example. In such a situation, a divorce will require figuring out how to move assets out of the living trust into another living trust and any associated tax consequences. Creating a new living trust may require retitling several accounts and assets. Beneficiaries likely will need to be changed.

Children & Inheritance 

Another significant concern will be the children of each spouse. If the spouses have been married for many years and have children only together, it might be easy to adopt the same allocations of inheritance in the original estate plan. But spouses should still decide how they want any of their estate to flow, and it may make more sense from a tax standpoint to assign one trust to some children over others.

If each spouse had children with others prior to their marriage, the matter of inheritance becomes more complex. When the spouses were married, they may have not fully accounted for distribution between child and stepchild. After divorce, those inheritance rules get easier for legal heirs but murky for promises previously made to stepchildren. And if one spouse adopted, even as an adult, any stepchildren, those adopted children share as the natural children under Missouri law. Consequently, if a spouse no longer wants that level of equality, that spouse will have to account for that in a new estate plan. Additionally, the distribution of assets and debts in the divorce may dramatically shift the anticipated value of the estate, so each spouse should adjust accordingly, including for specific bequeaths of personal property.

Funeral Expenses

If both spouses took pains to prepare in advance and purchased burial plots and decided on how to cover the funeral cost (often through the living trust), those plans now seem in limbo, as the spouses will no longer want to be buried next to one another. The spouses need to decide who retains the purchased plot or plots and the amount of compensation owed to the other spouse to purchase the plot or plots. Funeral expenses should be clearly covered by the right post-divorce estate.

Contact Our St. Louis County & St. Charles County Gray Divorce Attorneys

If you are over age 50 and are thinking about divorce, you probably have questions about how the decision to divorce affects estate planning. Call The Marks Law Firm, L.L.C. today at 314-993-6300 to discuss your questions and get the answers you need about the divorce process.

At The Marks Law Firm, L.L.C., our family law professionals can also help you address many of the practical concerns associated with your gray divorce. Additionally, we provide guidance with drafting prenuptial agreements for individuals over 50 who are looking to get married again. Contact us today to schedule an initial divorce consultation. We look forward to hearing from you.