Late-in-Life Marriage Brings Estate Planning Risks

Love is great no matter when it occurs during your lifetime, right?

In theory, the answer is always yes. But when you're an older adult, things aren't always so clearcut.

Let's start with a look at the numbers. According to Pew Research, about 53 percent of Americans ages 55 and older are remarried, meaning that they are on their second marriage or one after that. The research also shows that the number of cohabiting adults 50 and older increased 75 percent over the last decade. Cohabiting adults 50 and older make up one-quarter of all cohabiters today, which is striking because cohabitation used to be a step before marriage.

Divorce after 50, sometimes called “gray divorce,” has doubled since the 1990s and is contributing to the number of those 50 and older who could re-partner. Fifty-five percent of cohabiters in this age group are divorced, 13 percent are widowed, and 27 percent have never been married, according to Pew.

So, if you are in your 50s or older, you've found the love of your life, and you’re considering tying the knot, here are five things to think about before you do.

Consider a Prenuptial Agreement

A prenuptial agreement is a written contract that outlines the terms and conditions associated with dividing up financial assets and responsibilities if the marriage dissolves. Though a prenuptial agreement is widely viewed as a romance killer, it’s vital for older couples. If you are remarrying, a prenuptial agreement can help determine what will be left for each of your respective families to inherit if you divorce or when you die. It can also stop your spouse from challenging your will or any existing trusts.

Drafting a prenuptial agreement may sound like something any estate planning or domestic relations attorney could do, but when you’re getting married later in life, there’s more at stake than just who gets what in the event of divorce. It’s vital that the attorneys designing your agreement consult with an elder law attorney, who will be familiar with the needs of older couples. Without this expertise, general practice attorneys often overlook matters that need to be covered in the agreement, such as who pays long-term care costs and whether property can be gifted to children or other heirs.

Think About Long-Term Care

When people tie the knot, they’re rarely thinking about future long-term care needs. If you’re over 50, this is a mistake. Nearly three-quarters of the people turning 65 today will need some type of long-term care services before they die. If that happens to you (and odds are it will), who will pay for that care?

If you opt for a prenuptial agreement, the document should include language about who’s responsible for long-term care costs. The agreement might state that you and your spouse are both required to get long-term care insurance if possible and use your own funds first to pay for your own care.

Here's an example: A man in his 80s married his second wife later in life. Shortly after the wedding, his wife gave her property to her children. The man didn’t think anything of it at the time. A few years later, after his wife had developed Alzheimer’s disease, he realized that he had a problem. The property that his wife had given to her children was no longer available to help fund her long-term care expenses. Her children refused to return the property. He would have to foot his wife's long-term care bill using money from his own estate. Naturally, the man's own children were enraged. This sad scenario happens all the time. It's a common source of bad blood in blended families.

Don’t Jeopardize Income Streams

If you’re receiving Social Security, a VA survivor’s pension or alimony income, keep in mind that marriage may affect your eligibility to continue receiving that income. For instance, if you’re a widow getting a survivor’s pension, you could lose that income by getting married. If the new marriage ends in divorce, there’s no way to get that pension benefit back.

If you’re responsible for the care of a special needs dependent who qualifies for public benefits, marriage to a wealthy partner might disqualify your dependent due to new higher joint income, making your new spouse responsible for supporting your dependent.

Marriage can add complications to relationships where one partner is disabled or retired and the other is still working. If a retired or disabled person receiving Social Security and/or Medicaid marries a partner who is employed, their combined income might render the person ineligible for Medicaid, which would ordinarily help pay for long-term care. The spouse would then become liable for the cost, which could easily run into hundreds of thousands of dollars.

Update Your Estate Planning Documents

Getting married gives your new spouse some built-in inheritance rights that may disrupt your current estate plan. It’s important to review your estate plan after getting married to ensure that your assets are distributed according to your wishes after you die, particularly if you want to provide for children from a previous marriage or other types of relatives.

Don’t forget to update powers of attorney and advance directives for healthcare, as well as beneficiaries for wills, trusts, life insurance policies, retirement accounts, investment funds, and any other financial accounts. If you’re marrying later in life and you forget to change your beneficiaries on retirement and pension accounts, you could be putting your new spouse in an awkward position. Unless Federal law states otherwise, pension and retirement accounts go to the named beneficiary, which is often an ex-spouse.

It’s also a good idea to have separate wills. This step is encouraged over a joint will because it eases potential complications with the future distribution of property, especially considering that life circumstances can change throughout the years you are married.

Consider Cohabitation Instead

For those brave enough to risk their hearts at an advanced age, if you haven’t already tied the knot, carefully weigh marriage versus cohabitation. While marriage offers certain privileges and status, cohabitation allows more financial independence and lessens legal responsibilities.

If you’re already married, it’s not too late. Though some couples opt for postnuptial agreements and others decide to divorce, taking legal action isn’t always necessary. For most couples, a heartfelt conversation about these issues followed by a visit to an elder law and estate planning attorney will pave the way for a happy later-in-life marriage without the collateral damage.

If you need help sorting through these complicated issues, Kimbrough Law is here for you. Just give us a call at 706.850.6910 to schedule a confidential consultation.