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Gray Divorce and Estate Planning

Couple going through a divorce.
Estate Planning Jan 24, 2024

While most people expect that their later years will be a time of lessening responsibilities—children growing up and leaving the nest, careers winding down and retirement ahead—it can also be a time of unanticipated change and resetting. Gray divorce, or divorce after age 50, has doubled in the U.S. since 1990 and continues to climb among older adults. The process of divorce requires a thorough assessment of marital assets, negotiation over what each spouse will walk away with, and a restructuring of the family as each party moves into their new single life. It also provides an opportunity to initiate or update estate planning.

Divorce requires complete financial disclosures from both parties. Repurposing that information for estate planning doesn’t just save the labor of pulling together a full picture of your current assets down the road. It also allows you to designate who should receive those assets after you die, how they should receive them, and what should happen in the event you are ever unable to speak or act for yourself, at a moment where your old assumptions have been left behind and you’re creating a new future. This gives you control over your life decisions while sparing your adult children the stress of trying to guess what you would have wanted if you should become incapacitated.

The Benefits of Estate Planning

Estate planning is concerned with the practical questions of what should happen when foreseeable events occur, and ideally everyone’s estate plan should be regularly reviewed and updated to reflect their changing circumstances. When a long-term marriage ends, the parties are required to re-set their estate plan entirely. In a divorce, the joint plan will be revoked and each party will be responsible to fund a new trust with their share of the assets. In all likelihood they will also want to change their beneficiaries by removing their former spouse and adding their children or professionals as their agents and trustees in lieu of the former spouse.

Gray divorce can thrust adult children into a role they didn’t anticipate filling so soon—needing to be a decision-maker for their parent if necessary. An updated estate plan will give them the clarity of knowing your wishes in situations where you can’t communicate, relieving them of the burden of second-guessing their choices in potentially tragic circumstances.

Among other benefits, a comprehensive estate plan allows you to:

  • Avoid the cost and delay of having your estate go through probate after your death, transferring assets to your chosen beneficiaries more quickly.
  • Minimize court costs, legal fees, and taxes on your estate.
  • Leave instructions for how you want your valuables to be passed on.
  • Choose a trusted individual to make legal decisions for you if you become temporarily incapacitated.
  • Leave instructions for your care if you should become disabled.
  • Express your wishes regarding medical decisions, particularly end-of-life care preferences.
  • Name a guardian and inheritance manager for minor children (if any).
  • Structure a bequest to a loved one with special needs properly to avoid interrupting or discontinuing government disability or medical benefits.
  • Structure a bequest to protect family members who may be unable to manage money or who need safeguards against creditors.

The security and peace of mind provided by an estate plan are even more important for those with relatively modest assets than for the wealthy because the impact of gaps in this planning will take a more noticeable financial hit when you have less to leave.

Estate Planning Opportunities in Gray Divorce

While basic estate planning after divorce is a requirement, there are also opportunities to utilize more advanced estate planning tools and gifting to help facilitate resolution in a contentious divorce. Typically this is not an option for a younger couple who has not acquired sufficient assets to be comfortable, but for older more established couples, a solution could be to gift the assets into an irrevocable trust that provides income to a former spouse but ultimately locks in the asset for the children. This provides the required income under the Family Code, but assurances that a valuable asset cannot be left to a new spouse or a second family. There are also many estate tax planning opportunities under the Internal Revenue Code that exist for spouses which can be accomplished before status as a divorced person is final, allowing other beneficiaries to reap the benefit of the lower tax burden while meeting an obligation that the Family Court will impose on a divorcing spouse.

Expert Estate Plan Guidance

When divorce closes the door on your past, it sets the stage for the rest of your life. Having a thorough, current estate plan is a gift of peace of mind to yourself and your children as you move on. The expert estate planning attorneys at NM Law can help create an individualized plan that accomplishes your goals. To schedule your consultation, contact us here.


Ms. Minto has been a business and estates transactional attorney based in California since 2003. Her practice is now located in Tustin, CA but represents individuals and entities based throughout the United States and abroad. Phone: (949) 253-0000, Email:


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