One or the other spouse facing a terminal illness can add a number of issues and complications to a divorce action. Regardless of the ages of the respective spouses, this addition of significant health problems will impact everything from health insurance to child custody to estate planning. The divorcing couple also may find friends and family are conflicted by the choice to dissolve the marriage when one partner is soon to die, adding stress, guilt and confusion to an already difficult situation.

Health Insurance And Medical Costs

If the partner who is ill does not have health insurance except as a spouse the dissolution of marriage can mean the end of health care coverage for the terminally ill person unless specific portions of the final divorce order address the issue. Depending upon the rules of the insured spouse’s coverage continued coverage can be ordered by the court, although employer insurance may prohibit covering a now-ex spouse.

Sometimes a dissolution of marriage is sought because of the crushing debt caused by uncovered medical expenses. Once a divorce is granted the well ex-spouse has no continuing obligation to shoulder the medical expenses of the terminally ill ex-spouse. The person fighting the terminal illness may be able to qualify for governmental assistance to pay for health care and treatments, including care in a nursing facility or hospice, that may have been entirely private-pay during the marriage.

Child Custody

A serious and life threatening illness can impact even the best parent’s ability to care for children. Custody decisions can reflect the concern the court may have that the best interests of the child will not be served by awarding sole custody to the ill parent. Visitation may be structured differently to ensure the safety of the children in cases where a parent is quite ill.

Even if custody of minor children was awarded to the parent suffering from the terminal illness it must be understood that typically children of the marriage will be given into the care of the other parent after the death of the custodial parent. During the divorce proceedings the ill parent may want to offer reasons why this would not be in the best interests of the children. The parent who is ill needs to suggest a guardian for the children within a will or other estate planning document. Detailed documentation should be included to educate the court as to why the other parent is unfit to claim the children after the death of the custodial parent.

Life Insurance

Often a divorce decree does include orders to obtain and maintain life insurance naming the other spouse or the children as beneficiary. In cases where one spouse has a terminal illness it may not be possible for additional insurance to be purchased.

Currently held insurance may become critical in these cases, particularly where there are minor children. Ensure that the beneficiary or beneficiaries of any life insurance policies are carefully considered during the divorce proceedings and are updated as necessary to reflect the changing situation and the desire of the ex-spouses. The court may order a very specific designation to accomplish the purposes of the dissolution decree in some cases.

Estate Planning

When working through the legalities of the marriage dissolution the spouses also need to take a close look at the estate plans in place for both the well and the ill partners. The disposition of the financial assets of each spouse will need to be reviewed and probably changed because of the divorce. Take care that any power of attorney documents are considered and revised if necessary.

Any advanced medical directives or medical power of attorney documents need to be revisited in these situations. The ill partner needs to select other or additional people to ensure continuity of care and that the plan for interventions will be followed as the disease advances.