You never know what’s around the corner, but the older you get the more important it is to plan for what may come (whether that be incapacitation or death). This is true whether you are going through a divorce or not, but as with any major life change (a birth, a death, name change, a large inheritance…), you should make sure your estate planning is up-to-date for your current life situation.
- A “gray divorce” is a later-in-life divorce.
- With all estate planning, you should have an attorney/estate agent that checks in with you regularly about any major life changes that could affect your plans and documents.
- It’s beneficial to all involved if a meeting is planned with your adult children and your attorney/estate planning agent in order to make sure everyone has a clear understanding of what you have planned. It allows everyone to be on the same page.
OUR GUEST – Laura Cowan, Law Office of Laura Cowan
Welcome to another episode of the exEXPERTS DIVORCE etc… Podcast where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it! We’re T.H. & Jessica.
TH: Welcome everybody to today’s podcast featuring Laura Cowan from the Law Office of Laura Cowan. She specializes in trusts and estate law, so estate planning. Welcome to the podcast today.
Jessica: Thanks for coming back, Laura.
TH: Today we’re going to talk about gray divorce. Before we started recording, I was saying is there any other word than gray divorce? You’ve got your options of elderly and older Americans/generation. This isn’t about the actual divorce process, but Laura is going to take us through the important parts of estate planning that come into play when you are older and you are going through a divorce, from the financial side and your trust and wills and what we need to know so that you know. Let’s get started.
Laura: There are definitely some special considerations that people, older Americans, should be thinking about in terms of their estate planning that maybe aren’t quite as important for younger Americans. One of those is it’s really important to have what we call a financial power of attorney and a health care proxy for this group of people. What a power of attorney is, is basically a written authorization that allows another person to act on your behalf. It ensures that the person that you’ve chosen is the one making financial decisions for you if you’re unable to do that yourself. It’s really important to have what we call a durable power of attorney. This guarantees that the document is going to stay in effect if you become incapacitated, whereas a non-durable power of attorney automatically ends if you become incapacitated. The reason this is a little bit more important for older Americans is that the likelihood of becoming incapacitated is a little bit higher. So, who’s going to pay your bills, who is going to file your income taxes, and things like that, in the event that you’re not able to manage those things on your own. That’s one document that older Americans should be thinking about.
Jessica: Laura, I have a question. I want to do the run-through of the documents. I feel like that kind of a checklist, that information is so important for people of a certain age that are going through divorce now with grown children. I’m curious to know what you see from your end in terms of what the biggest, or maybe this is the answer to the checklist, but what are the biggest differences that people have to focus on based on their generation or their age specifically?
Laura: Yeah, well, incapacity is a big one, because it’s just more likely to happen as you’re older. Incapacity is basically, it means different things, but it’s basically when a person becomes mentally unable to manage their own financial and or medical affairs. This is when the power of attorney and the advanced healthcare directives become really important because you’re just more likely to become incapacitated as you get older. That’s definitely something that you want to think about if you’re in that age group. Just getting these documents in place now while you have full capacity, because if you get to the point where you start to lack capacity, then you won’t have the option to get put these documents in place. Maybe a court proceeding is going to be necessary to name someone to manage your affairs. You don’t want that because that’s going to be expensive and time-consuming.
TH: What do these documents actually say? What do they actually include? What does a durable power of attorney mean?
Laura: Yeah, so what it means is it lets you name somebody that you trust implicitly to pay your bills, file your income taxes, access your bank accounts, and do all the things with your money that you would be able to do, but you can’t do because you’re incapacitated. A lot of times spouses name each other, but it’s good to have a backup and I suppose if you’re divorced, then you’re not going to have a spouse, so you might want to name an adult child. This is just someone that you trust totally to manage those affairs on your behalf. Again, without one, someone’s going to have to go to court to get permission to do things like this for you. That’s going to be an expensive, time-consuming process. You can tailor your power of attorney to say what you want it to say and your attorney will work with you on that.
Jessica: I’m curious for people who were already responsible enough to deal with a lot of their financial planning, wills, estates, trusts, and stuff when they may be first got married and maybe their children were younger. Now they’re in this age group of gray divorce, their children are likely much older. They could be married, on their own, or have their own families. For someone who wants to change the documents that they had drawn up before, I mean, that’s what this is all about, obviously, you’re taking your former spouse out of these documents, and you’re changing who’s responsible. But what about when it comes to you want to change the circumstances, maybe for your children, either god forbid someone has lost a child, or fortunately a child is doing so well on their own that the parent is going to leave more to the other ones because this one is now a gazillionaire and doesn’t need it. I remember in a prior conversation, part of what you were talking about was certain kinds of trusts that can’t be changed. How do you navigate that?
Laura: Yeah, so that was a great point. The estate planning that you do when your children are three, five, and eight is going to be different from the estate planning you do when they’re 43, 45, and 48. That’s when you start to consider things just like what you said. One child is doing really, really well, is fine with not inheriting any money, the other child could definitely use the help. You might want to incorporate that into your estate plan. Maybe you’ve got a child who’s a physician and malpractice is a concern. You don’t necessarily want to leave that child their inheritance, what we say outright, which is you get a big check when you put in your checking account that if they ever get sued, that money is not protected in any way. Maybe you’ve got one child that you’re worried they’re going to get a divorce. Again, if you leave them their inheritance outright, they might just commingle that money with their spouse and then half of that could be lost in a divorce as well, so that’s a really great point. When you’re older, your kids are going to be older, and their needs and their concerns are going to be different than when they were minors. A lot of people, the old-fashioned way to think about estate planning is it goes to the three kids equally, each gets a third, and that’s kind of the end of it. There’s actually a lot. First of all, you may not want them to all get equal shares, and it doesn’t mean that you love them any differently. It just means their circumstances are different, leaving them the assets outright, as opposed to putting protections in place, based on where they are in their life. There are a lot of different options that you have to choose from that your estate planning attorney can walk you through.
Jessica: Is there anything that you could have put into place when your children were younger, that now you’re basically locked into and you may not change, because it’s just not legally permissible to adjust the circumstances?
Laura: Yeah, I mean, it’s possible when you or your kids were younger, you set up irrevocable trusts. It’s probably not very likely. If you have a will that you’ve had, that can be changed easily. If you’ve done something called a revocable living trust, which is a will substitute that lets you avoid probate court, all that can be changed. Most likely any current estate planning documents that you have can be tweaked or amended. That brings up a great point, which is that estate planning is not something that you just do once and then never think about again. The estate plan that you did when your kids were little doesn’t apply anymore. These are documents that you can change, and you should change and update as time goes on. Most likely when you have documents in place, they can be amended or revoked entirely. That’s another option as well.
TH: I have another question. You had mentioned before in another conversation that some documents are only valid in a certain state that you’re in. If you move somewhere else, or you have dual residence, let’s say you have a home in Florida and a home in New York, and your documents are based in New York, but you’re in Florida. How does that work when you’re of a certain age or young and you have two locations, and you have these kinds of documents coming into play now?
Laura: Yeah, so you want your will or your trust to be based in the state that you are technically a resident, whatever state you pay taxes in. But then you might want to have a health care proxy that’s valid in each of the states, a New York health care proxy where you name someone to make medical decisions for you in New York that follows New York law, and then a similar document that follows Florida law. That’s not a very expensive document to have. It might make sense to have something like a health care proxy that’s valid in both states, but your overall estate plan will be based on a state that you are a resident in.
Jessica: I think is so important and we should really continue to emphasize to people it’s not a one-and-done situation. Just because you may have created your trust, estate, and will plan X number of years ago, it is something that you need to go back and revisit and tweak as needed. My question is, is there a standard timeline or a suggested every X number of years? Is it like you should go back and change it every ten years? Is it every five years? Every 15 years? What would you recommend would be a good timeline for people to keep in mind?
Laura: Yeah, so that’s a great question. I would say three years at an absolute minimum. That doesn’t mean that you have to change your documents every three years. It just means that you should check in with your estate planning attorney, or they should, frankly, be checking in with you at least every three years. I check in with my clients once a year, and check-in just being, have you had any major life events? Has anyone passed away? Have you inherited a lot of money? These things might warrant a tweak to your estate planning documents. They might not, but there’s no point in doing these documents if they grow stale. I would recommend if your documents are more than three years old that you definitely check in with your estate planning attorney. The other thing is that even if your life hasn’t changed significantly in that three years, the laws might have changed. The laws are always changing. Your estate planning attorney is going to be on top of that, but there might be reasons for you to change your estate planning documents that you’re not even aware of.
Jessica: Could you give an example of that that might resonate with people, because I can’t even imagine what that could mean?
Laura: Yeah, so the estate tax laws are a great example of that. The estate tax is a tax that is due on estates that are above a certain dollar amount when someone passes away.
Jessica: Is it a nationwide dollar amount or does it vary state to state?
Laura: Well, there are both. There’s a federal, there’s a nationwide dollar amount, which right now is about $11.5m per person.
Jessica: I don’t have to worry about that [laughs].
Laura: Most of my clients, laugh when I say that. Then in New York, it’s if you’ve got more than about $5.8m. Those are the current laws. Those laws change, and they change frequently. Most people right now don’t have to pay a state tax when they pass away because most people don’t have more than $5.8m or $11m, but a few years ago, those numbers were as low as a million dollars.
Jessica: Oh, that’s a big difference.
Laura: Yeah, so those laws are always changing. In fact, Biden has proposed reducing the federal number from $11.5m to $3.5m.
Laura: And that actually includes life insurance, which a lot of people don’t consider part of their estate. If you add up everything that you own, and then you throw in the life insurance that gets paid out, you might be above that.
Laura: What I recommend is checking in every three years with your attorney, and even more important, working with an attorney who’s going to check in with you. It’s kind of their job to keep up with these things and to reach out to their clients every year. I can’t tell you how many times I work with people who they say, my lawyer drafted this will for me 10 years ago, and I haven’t heard from them since. I’m like, well, that’s not good.
Jessica: Yeah, I’m trying to think, to be perfectly honest, I don’t even remember who did my first one with my first marriage. I literally have no idea. I know who did the one with Leo because that wasn’t that long ago, but you’re right. I feel like it’s not something – or those emails are going to spam.
TH: My attorney for my estate planning stuff sends me a calendar every year, so that’s my reminder. I remember he’s still alive and where he’s located. It’s a reminder. I haven’t checked my will, but that is another thing I’m going to do. And from our last conversation, I already got my girls’ health proxies in New Orleans.
Laura: Oh, good there.
Jessica: They’re in college.
TH: Yeah, you have to get it. I mean, that’s a no-brainer.
TH: Well, TH, since your divorce, you changed it when you got divorced, but you’ve also changed it since then?
TH: I changed it because I changed my last name, so I had to change it again. [Right, right. Right Yeah. Okay] And I did actually read through it when I did it because I was planning for it to get changed anyway, so I may as well –
Jessica: Right. No, it makes sense. So the incapacitation is a major issue. It really should be for anyone because you never know, god forbid, horrific accidents, but I understand that an adult at an older age, that’s definitely more of a concern for people. Are there any other major red flags that people don’t want to admit to and they don’t want to think? I have these, I don’t want to say I have these conversations with my parents all the time because I don’t all the time, but it’s not infrequent that my mother will be like, you know the code to the safe, right? Do you know where we keep –? I’m like, don’t tell me anything, just tell my brother, and like, that’s all fine, and yes, I know the code to the safe, and I never plan on using it. But are there any other red flags or urgent issues that people really need to be thinking about at this age for divorce vs. if they’re in their early 30s?
Laura: Yeah, no, that’s a great question, because the answer is, your kids are probably grown now as well –
Jessica: I have teenagers, 14 and 17.
Laura: Well, not you, but people like older Americans.
TH: We’re not in that group!
Laura: Yeah, so that’s a whole different ball of wax. What it means is that you can include your adult children in your planning to the extent that you feel comfortable. It doesn’t necessarily mean telling them what’s in the documents, although that’s also an option. One of the things that I like to do is have family meetings where we invite the adult children and the parents, the advisors if you have a CPA, financial advisor, and we get everyone together. We don’t reveal more than the client wants to reveal, but we do talk about this, this is your role. You’ve been named as the trustee. What does that mean? You can tell the adult child that. When your kids are minors, it’s not important.
Jessica: That’s an interesting concept. I feel like I should tell my parents to maybe do that because I think that they probably try to drop these little nuggets on us randomly and separately. No, but what you’re saying, there’s no question my brother, who is a financial advisor, is the key to all of their things. But I do feel like that might actually be an interesting conversation to have, to one day actually set up and say we should all be on this Zoom, and let’s go over this stuff for you guys.
TH: Now you’re on the same page. It’s not like, well, they told you this, they told me this, they told her that. It’s an even playing field like things get really ugly when there’s –
Jessica: I’m literally going to bring this up with them tonight.
Laura: Yeah, yeah. The best way to bring it up is to say, you don’t have to tell me necessarily who’s getting what or how much money you have. People are funny about that.
Jessica: As long as I’m getting the most we’re good.
TH: Just don’t tell them our deal.
Laura: You can talk about though like I named you as a health care proxy, child number one. We’re only allowed to name one person at a time, and explain that you can’t name two people, so we just had to pick one, and we chose you. But I’ve chosen you, child two, as my power of attorney, and this is why I did that. If something happens, here’s the lawyer we worked with. Give her a call just to get on the same page so the plan works when it has to. That’s the goal here. It’s that everyone knows what they’re supposed to do.
Jessica: I have a very important question before we wrap things up. So as an adult, I’m a grown-up and my siblings are grownups. I think this is probably not an issue in my family, god, I hope so, but let’s say you’re having a family conversation, and you’re saying, child, number one, you are the power of attorney or you’re the health care proxy, whatever the case may be. What do you do if, god forbid, you’re in that situation where the health care proxy person has to play that role and now the children are not in agreement of what the procedure should be? I guess it doesn’t matter because if you’ve already dictated a health care proxy, you’re just doing whatever it is that they said to do. Maybe my question is irrelevant.
Laura: Well, that’s the reason why in New York State you cannot name co-agents. Because if you do that, let’s say you name both children, and then one says we should do XYZ and the other says no, that’s not helpful. You’re only allowed to name one at a time in New York. Okay, but you’re right. There’s the potential for conflict. These are tough situations, but the family meeting at least gives you a chance with the attorney supervising the whole thing to explain how things will play out in the event of an emergency or a death.
TH: I think it’s great.
Jessica: I love it. That’s huge. For me, that’s the biggest takeaway of today.
Laura: Family meetings with the attorney refereeing the whole thing.
Jessica: Yeah, no, I’m really into it. That’s great information. It’s so helpful. Thank you yet again for coming back and sharing all of your expertise and insight with the ExExperts community, because we know that this is one of the most important areas and an area that people don’t necessarily really want to think about. They don’t want to have to think about it, it clouds people’s heads, and it’s just along with all the financial stuff, it’s just not something that’s in the forefront of everyone’s minds when going through a divorce. It’s such an important thing to be discussing. For people who have questions and want to reach out to you directly, what are the best ways to reach you?
Laura: Yeah, so we try to make the process as painless as possible because it is not fun to think about, but I do think it brings a huge amount of peace of mind. The best way to reach out to me is to either, and I think you’ll have this information on your website as well, but feel free to send me an email. It’s firstname.lastname@example.org. The first step in our process is to come in for what we call peace of mind planning session. Come in/Do it via Zoom. This is just a one-hour session with me where we’ll talk about your goals and your objectives and I’ll present your different options and our fees. If you decide to move forward, we’ll talk about the next steps. We usually charge $450 for this session, but for the ExExperts community, we’ll waive the fee.
Jessica: Thank you.
Laura: It’s a free session, which I’m happy to do. That can be booked as well at Calendly. Our calendar is www.calendly.com/estateplan/design and I think you’ll have that link on your page as well. Send me an email, or you can call my office: (212) 760-2956 and we can get you on the calendar to come in for peace of mind planning session.
TH: All right, thank you.
Jessica: Thank you so much, Laura. I can’t wait to have you back to further inform all of our community about the things that they need to do with estate planning. Thank you so much. Thanks for listening.
Laura: Thanks for having me.
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