Late-Life Marriage Issues

ROBERT GOLDBERG :::

Q: What legal consequences should older adults consider before marrying?

A: Several issues arise, mostly having to do with responsibilities to the new partner.

First, married people owe certain duties to each other, including support. An older adult with assets could even be sued for a spouse’s unpaid medical bills.

The best solution is a prenuptial agreement. An elder law, estate planning, or family law attorney can draft an agreement specifying the spouses have no duty to support each other and that each person’s assets remain his or her own, to dispose of as desired, even after death or divorce. To be effective, though, the agreement must be signed before the marriage.

A prenuptial agreement will not protect you, however, when it comes to qualifying for Medicaid, which provides long-term care and other services when “countable resources” fall below a combined total of $111,540.00 for a couple. Under the Nursing Home Medicaid rules, all assets of both spouses are considered available for the care of either of them, whether in a nursing home or at home. Medicaid ignores any prenuptial agreement.

Still, if one spouse is in a nursing home and can’t afford to pay for it, the couple can divorce. It’s a sad option, but if there’s a prenuptial agreement, at least the spouse who is living at home can retain his or her assets.

Another issue with later-life marriage is you may not be able to distribute your property exactly as you wish after your death, because Georgia law gives a surviving spouse the right to “Years Support.”  A surviving spouse can petition the probate court to receive whatever he or she would need to support him or herself for one year.

Also, if a person dies without a will here in Georgia, any property passing through probate will be divided so that the surviving spouse gets only one third of the estate; the other two-thirds go equally to the deceased’s children.

Therefore, if an older adult marries and wants to assure he can leave all or most of his estate to his children (or a charity, or anyone) he should, again, have a prenuptial agreement. Without one, his spouse may honor his wishes after he dies but will not be legally forced to do so.

With a prenuptial agreement or without, it’s wise to keep assets separate if one party wants to be able to control what happens to his or her property after he or she dies. Set up separate bank or brokerage accounts, or create a living trust. If assets are titled in both spouses’ names, they will belong to the survivor.

Social Security presents another concern. Someone who is widowed, or was married for at least 10 years before divorcing, can draw Social Security benefits based on a spouse’s or former spouse’s earnings. But this benefit gets cut off if someone remarries before age 60, a possible reason to delay a wedding. Many pension plans have similar provisions. Before booking the hall, see how remarriage might affect retirement income.

Then there are tax issues. If you file joint-income tax returns, federal or state, you assume responsibility for your spouse’s taxes. The good news is, you’re both in a lower tax bracket. The bad news is that if your partner underreports income or makes mistakes, the consequences now belong to you, too.

Often an older person will try to sidestep family tensions by placing assets in a trust, often to ensure that after his or her death, the surviving spouse will be cared for. It’s often wise to consider naming an independent trustee, like a trust company, instead of a child. There have been cases where the deceased’s children misused a trust’s assets or refused to care for the survivor.

In short: Before you marry, consider the impact on your income and assets and consider a prenuptial agreement that protects both you and your new spouse. After the wedding, update all your estate planning documents — wills, living trusts, durable powers of attorney, health care proxies — to reflect your new marital status and any new decisions you’ve made.

Bob Goldberg has focused his practice on Estate Planning and Elder Law since 1999. He is a member of the National Academy of Elder Law Attorneys and its Trust and Tax Special Interest Groups. Bob commits himself to staying on top of recent developments in Estate Planning and Elder Law, and is also a member of the Georgia Alzheimer Association’s Speaker’s Bureau. If you have any questions please e-mail rmgoldbergelderlaw@mindspring.com.

Column schedule:  Bob’s column regarding elder law issues will appear every Monday on The Grip website and in the second issue of The Grip each month.

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Comments

  1. A legal pre-nuptial agreement is especially important if there are children from a previous marriage involved. Take it from me, without this clearly defined division of property heirs will flounder in confusion and hurt feelings when it comes time to divide the assets. We will all die eventually – please don’t leave your children confused and possibly with animosity toward other heirs.

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