Getting married later in life can be a rewarding experience. A client of mine recently remarried after his wife had passed. He reconnected with a classmate from his high school days. They both were extremely happy to have found a soul mate after the passing of their spouses.
A marriage in your later years has issues that the marriage in your youth did not. For one, you have accumulated savings. Perhaps you have children from the prior marriage. How your wealth will pass at your death needs to be addressed or there could be upset members of your family. And how will those children and your current spouse play a role in your life going forward in important matters about your health and asset management?
Here are some of the estate planning issues that you need to address if you plan to say, “I do”, in a “Silver Marriage”:
- Address property issues in a Nuptial Agreement. Nuptial Agreements cover property issues that could arise in the event of divorce or the death of one of the spouses. Usually, the spouses in Silver Marriages keep their property separate from each other. They agree to allow each other to leave their savings to their children at death rather than the surviving spouse.
- Have an agreement regarding the residence. If one spouse owns the residence, what rights will the surviving spouse have to reside there when the owner dies? Set forth the right to reside in a Nuptial Agreement and allow the proceeds from the sale to pass to your children if you desire.
- Make sure your wills are updated. If you want to leave money or property to your new spouse, the will needs to be revised. Perhaps you want to leave money or property to your new spouse in trust, rather than outright. That would protect your savings from being consumed by the surviving spouse and provide a better chance of an inheritance passing to your children.
- Powers of Attorney may also need to be updated. When you marry, you may want your spouse to have the power to make medical decisions for you if you become ill. Make sure you discuss this with your children. If your children have a falling out with your second spouse, he or she may limit access to visit you when you become ill. Your agent in the Financial Power of Attorney will also have significant control over your assets and may have the power to change beneficiaries and make gifts benefitting themself. Checks and balances can be put in the Financial Power of Attorney to limit the authority of the agent.
- Be aware of how your savings can be used for your spouse’s nursing home care. Despite having a Nuptial Agreement, you may ultimately have your savings caught up in the care of your spouse if he or she enters a nursing home. Let’s say you are in a marriage where one spouse has sizable savings and the other does not. If the spouse with limited assets enters a nursing home, their savings may run out quickly. How will the wealthier spouse pay for the care of the spouse in the nursing home without using their savings? The Medical Assistance Program does pay for the care of those who are in a nursing home, but the assets of both spouses will be counted to determine eligibility. Medical Assistance determines eligibility without regard to Nuptial Agreements. So, your savings could be exposed to pay for your spouse’s nursing home care, even if you have a Nuptial Agreement.
If you are intent on getting hitched in your later years, it is advisable to discuss these issues with your family and visit your estate planning attorney.
