The “d” word is a common reference for divorcing individuals. The very mention of the word “divorce” sends shivers, evokes anxiety. Yet what about the other disquieting “d” word –“death?”
No matter how hard it is to speak of divorce, there is no question that divorcing couples will be dealing with all the aspects of separation and divorce. In confronting the aspects of dissolving their marriage, they will need to consider the world after marriage. They will divide their assets and liabilities; they will calculate alimony or waive rights; if there are children, they will structure a parenting plan and child support obligations; they will discuss their children’s education; and, too, they will consider health insurance and even tax filings.
The question we pose here is whether they will also address questions related to the death of either spouse. It is our belief, at the Centre for Mediation and Dispute Resolution, that “death” does indeed need to be a topic requiring discussion, reflection, and agreement.
Let’s consider the different reasons why divorcing couples should talk about death.
1.) The most common provision for death in divorce agreements is the inclusion in the Agreement of a pledge to provide collateral for support obligations for child support and/or alimony. The key question is: How much protective coverage do I need to provide in order that my support obligation is upheld in the event of my death? Here the answer is not as simple as the question. Obligations for support change over time. The amount owed at the time of divorce for a child of 5 years of age, is not the same as when the child is 18. As such, agreements may include terms for decreases in collateral pledges over time.
Even more challenging is the nature of the collateral. Although life insurance is the most typical choice of divorcing couples, at times the cost is too burdensome or the timeline required too long or the individual spouse does not wish to secure insurance. Alternatives to life insurance may include asset pledges or a combination of both insurance and assets.
2.) Less common are testamentary provisions for the parties’ children. Spouses may worry that the marital estate, albeit to be divided, will be inherited by new spouses and, perhaps even more objectionable, the new spouse’s children.
3.) Even less common are provisions for each other in the event of death. Here, particularly, for couples with long marriages, the parties may agree that their marital estate should only benefit the individuals responsible for its creation—namely each other. At times, this kind of agreement is subject to modification in the event of remarriage of either spouse. At other times, the estate at the time of divorce is identified and it is those assets, still remaining at the time of death that will be bequeathed to each other.
Clearly, the subject of death at the time of divorce should not be ignored. Whereas we have only touched on why members of the divorcing population are receptive to a discussion of death, the intricacies of the subject are beyond the scope of this article. Even the seemingly simple subject of life insurance can be approached differently. Should each party name the other as beneficiary? Or should each one name a trust? And if a trust is the answer, who is the trustee? And so, the questions can multiply. The important point, however, is that couples need to be thoughtful in crafting their agreements. They need to think of today and of tomorrow.
Mediation provides the ideal forum for creative thinking on difficult topics. The problem solving approach, facilitated by a skillful and knowledgeable mediator, helps to take the “sting” out of both “d” words and to fashion solutions that will fit the needs of all family members now and in the future.