Chapter 2-4 Divorce

• Jurisdiction: United States

2-4 Divorce

Not all marriages are "made in heaven." And even if the elderly may believe they are closer to heaven than they were when they were younger, their late-in-life marriages may not have been made in heaven. By the same token, elderly people who spent many years as married couples may find that in old age they have become incompatible and their marriages end. How does divorce interact with Elder Law?

2-4:1 Divorce and the Elderly: The Last Will and Testament

In Texas, divorce alters a married person's Last Will and Testament. Immediately upon the signing of the divorce decree, unless the Last Will and Testament expressly states otherwise, any provision naming a now-former spouse as a beneficiary or fiduciary is revoked; so, too, is any gift to, or appointment of, any relative of the former spouse who is not a relative of the testator.⁵⁸

Good lawyering dictates that the attorney representing the elderly client would lead him or her to execute a new Last Will and Testament prior to filing the divorce petition.

2-4:2 Divorce and the Elderly: Non-Testamentary Transfers

The same rule regarding revocability applies to non-testamentary transfers in favor of a now-former spouse. Such transfers include transfers made pursuant to regular and revocable living trusts, general and special powers of appointment, conservatorships, agencies, and contracts.⁵⁹ Among the contracts wherein divorce renders the naming of a now-former spouse as a beneficiary as null and void are life insurance policies⁶⁰ and retirement plans.⁶¹

Good lawyering dictates that the attorney assists his or her client in changing the beneficiary under any of these policies, contracts, and non-testamentary transfers prior to filing the divorce petition.

2-4:3 Divorce and the Elderly: When a Spouse is Incapacitated

Divorce is not limited to spouses who are young, in good health, or have mental capacity. Even spouses who are incapacitated can be parties to a divorce.⁶² The question we wish to explore here takes this case one step further: Can a divorce occur in Texas when one of the spouses is incapacitated and under a guardianship?

The answer is "Yes." Under Texas's "no-fault" divorce law, people with mental impairment can divorce. All that is necessary is for one spouse to allege—and prove—that discord or conflict of personalities has destroyed the legitimate ends of the marriage and that no reasonable expectation of reconciliation exists.⁶³

That being said, divorce signals not only the end of...