Divorce provides fertile ground for elder law issues, not at the time of divorce, but later. Years after the divorce, a second marriage may occur. Decades after that, one spouse or the other staggers under the weight of dementia or Parkinson’s or other chronic health issues. From this field, tension sprouts between the spouse who is well and the children of the spouse who is not.

The spouse who is well sees the cost of long-term care for her sick spouse. She may learn that their combined resources must pay for this care until they are spent down to a certain level before Medicaid will pay for it, even if she has always kept her funds separate. She may worry about having enough money to support herself and about being able to leave money to her kids.

The kids of the sick spouse may have their own worries. They wonder if dad’s spouse is providing the best care possible for dad. They wonder about dad’s promise to take care of them in his estate plan. They wonder if their step-mom has convinced him to change the plan. 

They all look to spouse/dad for assurance. He is always willing to provide it, but due to his condition, his fatigue, his sadness about what his life has become and about the fissures that he sees developing between his spouse and his children, his assurances can be contradictory. He wants them all to be happy and not to be disappointed in him. He tells them what they want to hear. They want to hear different things. His spouse may take him to a lawyer and, when dad can’t explain to his kids why he met with his lawyer, his kids may take him to another lawyer. No matter how many lawyers he sees, spouse/dad’s capacity to convincingly communicate his wishes is compromised, and his assurances are ineffective. 

These circumstances can grow into guardianship cases, as spouse/dad is pulled back and forth between two increasingly separate camps. They can become expensive fights over Wills or Trusts. I have participated in many of these cases on behalf of all of the sides (spouse/dad; his kids; his spouse). These common elder law experiences have unsettled me, a divorced man, and made me wonder whether conflict and chaos is an inevitable result of a relationship with anyone who is not the parent of my children.   

Two factors push back against this bleak conclusion: First, so many of my clients love their partner’s children as their own. They give power of attorney to their partner’s child, or otherwise express their trust for their partner’s children in the estate planning documents that I draft for them. These clients have blended their families to the extent that the varying origin stories of their children are not apparent. Second, my clients have found another partner, and they are confident enough in that relationship to build an estate plan with them. They will take their best shot at expressing their intent regarding how their incapacity and death should be managed. They know that plans can go awry. They have dealt with broken plans before. This knowledge that bad things happen do not keep them from planning and being hopeful for the future. My clients are making the best of their second chance.