Divorce Rates for Couples 50 and Older Have Doubled Since 1990 — What This Means for Estate Planning and Medicaid Planning

Years ago, the vast majority of couples who weren’t happy in their relationship chose to remain married out of convenience or routine, a sense of familiarity, or for their children. This has changed in recent years for many Americans ages 50 and over who are deliberately choosing to part ways. In fact, the divorce rate for Americans 50 and over has doubled since 1990.

Why Are More People Getting Divorced after 50?

After so many years of marriage, partners know each other at their best and, of course, at their worst. Many couples will have raised children together by this time and discovered things about one another they agree about and admire, as well as ways in which they completely disagree. One might think that, if any of these issues suggested incompatibility, a marriage would end long before a couple was in their 50s or 60s. That’s not the case anymore.

According to psychologist John Duffy, “(c)ouples aren’t simply “drifting apart” over time anymore. One or both people in the marriage are making an overt choice to change course for the time they have left. And recognizing that life is short and precious, one or both partners choose what they feel is the most fulfilling path. They tend to believe that, if a marriage is not working for them, it really isn’t working for their spouse either. So, they afford themselves the space to gain, or regain, happiness and fulfillment.”

A New Chapter in a Longer Life

We are living so much longer on average than our parents a generation ago. Many middle-aged couples feel like now is the time, while there is enough time remaining, to pursue the next chapter in their lives. There are even people in their 70s and 80s who regret not taking that opportunity for themselves, remaining in a marriage that too often feels stale or filled with conflict.

According to Jeff Stokes, assistant professor at the University of Massachusetts Boston’s Department of Gerontology, another contributing factor is an increase in women’s financial independence, which has reduced the fear of financial repercussions stemming from divorce. He explains,“(i)t’s not uncommon for women to earn more money than their husband.” There is also a greater cultural acceptance of divorce now.

Some Relationships are Viable, But Need Work

Some couples have chosen to stay together for decades, until their 50s or 60s, in order to provide a stable environment for themselves and, most especially, their children. If you are considering divorce, John Duffy suggests talking to your spouse openly about the nature of your feelings, and what your spouse, or the two of you together, might do to improve things, or to inject new life in your relationship or if the best option would be to part ways. He suggests seeking a therapist to help guide you through the process.

Estate Planning Changes You Should Make if You Are Planning to Get Divorced

It’s recommended that you update your estate plan after any major life event, including separation in advance of divorce, because it’s likely that your choices for beneficiaries and agents will have changed. For example, you probably have your spouse named as your primary beneficiary and primary decision-maker on all of your current documents, which you probably want to change immediately. You’ll obviously want to rethink  these decisions in light of a separation or divorce.

In an article on the subject, I discussed changes you should consider making to your estate planning if you are divorcing or already divorced. One such change is signing a new Advance Medical Directive. Chances are your Advance Medical Directive names your spouse as the decision maker, which may not be what you want when you are separated and planning to divorce.

You should also change your General Power of Attorney. Your General Financial Power of Attorney probably names your spouse in first position and gives your spouse access to all of your accounts and assets. You may need to revoke that power of attorney, execute a new one, and provide notice to your spouse, your banks, and all other financial institutions of the revocation.

If you’re getting divorced, it’s likely that your revocable living trust and last will and testament needs to be reevaluated and updated. And certainly if you have any type of irrevocable trust, such as our Living Trust Plus®, that will need to be looked at and modified if possible.

Also, keep in mind that once divorced, clients will typically leave the spouse only what he or she is entitled to receive under the laws of the state, or disinherit him or her altogether. Be aware that you may also be entitled to a portion of your former spouse’s retirement accounts, such as a 401(k), IRA or other eligible plans.

As you can see, it’s important to revise your estate plan if you are planning on getting divorced. When revising your estate planning, be sure to provide your estate planning attorney with a copy of your property settlement and separation agreement to determine what, if anything, your spouse is entitled to in the event of your death. Your new estate plan should be consistent with the terms of your agreement.

Medicaid and Divorce

Some people think that to be eligible for Medicaid, getting divorced may be necessary. This is never the case, but sometimes a divorce in connection with Medicaid planning is a good planning option, especially if there might be other motivations behind the divorce. By doing Medicaid Asset Protection with an experienced Elder Law attorney, such as myself, almost all married couples can protect 100% of their assets and still obtain Medicaid, without needing to get divorced.

Plan in Advance for Yourself and Your Loved Ones

Whether you are planning to divorce, are divorced, are happily single, or choose to stay married, we here at the Farr Law Firm have strategies in place to help all types of people at all ages in all situations to plan for themselves and their loved ones. By planning in advance, each person can retain the assets it has taken a lifetime to accumulate and the peace of mind that their family’s needs will be adequately and properly addressed. If you or members of your family have not done Incapacity Planning, Estate Planning, or Long-term Care Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for a no-cost initial consultation:

Estate Planning Fairfax: 703-691-1888
Estate Planning Fredericksburg: 540-479-1435
Estate Planning Rockville: 301-519-8041
Estate Planning DC: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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