The graying divide: How wealth concentration is rewriting family law

Years ago, a grown son called my office in a panic. His elderly father--an Auschwitz survivor who had rebuilt his life in California by investing in real estate--had just attempted suicide. The reason: his new wife was fighting to take the family's beloved beach property away from his children, and he could not live with that being his legacy.

We used divorce as a tool to resolve what was, underneath everything, an estate dispute. We moved fast. Under California law, a party may request a preference, expedited resolution, if they are over the age of 70 and the facts warrant expedited attention. (See Cal. Code Civ. Pro. 36.) He survived. At the time, in the early 2000s, I thought it was an outlier.

Now, it's a Tuesday.

The numbers tell the story. Those ages 55 and up control an estimated 73% of all U.S. wealth, according to the Federal Reserve. Millennials and Gen Z (those born after 1981) control just 11% combined, a figure that is even more absurd when you account for how much of that belongs to just Mark Zuckerberg.

Baby Boomers are sitting on an extraordinary pile of wealth without historical precedent. They are not aging into it quietly. They are remarrying, restructuring, and in some cases, fighting their own children over what happens next.

What we're seeing in family law practices across California, particularly where I practice in the Bay Area, the center of global venture capital investment, is not the divorce law our system was designed to handle. Our statutes were written for "Leave it to Beaver" families. Now, they're being applied to dynasties and financial structures that most judges, let alone most spouses, have never encountered.

The graying divorce, in which one or both partners are in their later decades (typically over 60), has become its own specialty. It's complicated in ways that require collaboration between attorneys, trust and estate counsel, and accountants who can navigate a private equity fund agreement. When an 80-year-old husband with Parkinson's disease comes out as gay and wants to be with his new partner, while his wife of decades faces losing her health insurance, the applicable law offers imperfect answers. When a couple divorces and one spouse dies before the judgement is entered, the case may migrate to probate court with an entirely new cast of characters. (See, Family Code 310 (death dissolves a marriage).)

Critically important in these cases is California's divisible divorce statute, which allows parties to terminate marital status while leaving financial issues open. (See, Family Code § 2337.) It keeps the matter in family court and preserves continuity. It can prevent a halfway resolved dispute from collapsing entirely when one person's health deteriorates or mental capacity comes into question. These aren't theoretical concerns. They're coming through my door regularly.

Beneath graying divorces are structural tax and policy problems that family lawyers have been slow to confront. The preferential tax treatment of carried interest and capital gains has produced a bifurcated economy. Wages are taxed as wages but a specific class of financial services professionals, such as venture capitalists and private equity partners, are compensated in ways that never touch a pay stub.

A spouse who may have spent a career managing the household and raising children may have no framework for understanding where the spouse's property may be or how to interpret it. If the attorney can't make sense of the compensation agreements, the disadvantage compounds.

Family law has always been a war zone, but the weapons have changed. In Bay Area cases involving older parties, aggressive deposition tactics, strategic delays and an adversarial ethos may be used. This is the wrong approach for family law, where the goal is not to win at all costs, but to reach a durable resolution that protects children, respects the court's function and leaves parties capable of co-existing.

The judges who preside over these matters have enormous discretion and they are busy. The most effective family lawyers are not necessarily the most aggressive, but the most strategic. They recognize the offramp a judge needs and recognize when a case needs to be fought or settled. Showing up in court over years as a problem-solver rather than an accelerant is not just a soft skill. It's the job, and it builds credibility with the court.

For practitioners, Boomers or their loved ones, the costly mistake is waiting. Clients who consult before a crisis, or ideally before a marriage, are dramatically better positioned than those who call after the fact. The shame many people feel about seeking information, particularly women who worry that consulting an attorney is a betrayal of a relationship, costs them dearly.

The complexity of multi-party mediations involving adult children, blended families and trust beneficiaries are no longer rare. Family lawyers who cannot collaborate will be outmatched.

The elderly man lived to see his children keep the beach property he had built for them. Not every case ends this way. But it reminded me that family law, at its best, is wealth distribution in service of dignity. As wealth becomes more extreme, the stakes--and demands on attorneys--grow accordingly.