Getting Married after 60: Estate and Elder Law Planning Considerations in a Second Marriage

Maybe you were divorced or widowed and never expected to remarry — but here you are. Love can find you at any age. At this age, however, you are likely bringing more than life experience into the marriage — you are likely bringing separate assets, income, debt, health conditions, and families together. There is more to consider and plan for as you enter marriage in the second half of life. 

Prenuptial Agreement

Consider a prenuptial agreement, which helps to clearly identify separate property assets and liabilities and spells out how assets will be divided in the event of divorce. You can also include agreements, if any, regarding testamentary wishes (e.g., wife and/or husband agree in their Will, Trust or by other means to provide “x” to their surviving spouse upon their death versus no such agreement), and whether you will maintain a joint account for joint household expenses. While a “prenup” may not be romantic, it can be a lifesaver if you have unequal amounts of wealth, children from a previous marriage, are expecting an inheritance, or want to set forth obligations regarding payment of each other’s expenses (e.g., long term or health care expenses).  

Estate Planning Considerations

Medical directives are important. If you were to become seriously ill would you want your new spouse or someone else (e.g., adult child) to be your medical decision maker?  You should have valid health care and mental health power of attorney, living will, and medical release in effect which clearly reflects your wishes. These documents will help avoid family conflict. 

Finances — Mine, Yours, and Ours. How will you own your assets — joint, separate, in trust(s)? How will expenses be shared? The good news is that spouses are not responsible for the debts that each brings into the marriage. However, since Arizona is a community property state, spouses do share any debt accumulated during the marriage. 

Financial Power of Attorney, Wills and Trusts. If you were not competent, who would you want to manage your assets (e.g., spouse or others)?  What if you own the home property in which you both reside as your separate property? Would you want your spouse to be able to continue to live in the home if you were no longer able to live there yourself due to long term care needs? If you died first, would you want your spouse to inherit the home property outright? Have a life estate interest? Have a first right of refusal to purchase the property? In the event of your death, do you want to provide for your spouse? If not, your estate plan should clearly state the same. If yes, how? If you leave assets at your death to your surviving spouse outright and free of trust, your assets will then belong to your spouse and he or she can leave their assets to anyone they want- including or excluding your children.  A better approach may be to leave your assets or a portion thereof in trust for the benefit of your surviving spouse during his or her lifetime, but upon there death will distribute any remaining trust assets to your children (or other desired beneficiaries). 

Your adult children may have financial concerns that revolve around inheritance. They may worry that “their” inheritance could be in jeopardy. With proper estate planning, you can create an estate plan that protects both your children and your spouse. The key is to work with an attorney who has experience in estate planning among mature adults. 

In sickness and in health…

The high costs of health care can be one reason why older couples remain unmarried. Why? Married couples are financially responsible for each other’s medical and long-term care expenses. If one spouse needs long term care, the cost could range anywhere from $3,000 to $7,000 per month. If you plan to apply for Medicaid (Arizona Long Term Care System) benefits as a married person, you should bear in mind that the countable assets of the “well-spouse” will be limited to a maximum of $130,380 (2021 limit). While we can often preserve significant assets through Medicaid asset protection planning, it’s important to do your homework and consult with an experienced elder law attorney when contemplating marriage if you have these concerns.  

Whether you are contemplating marriage or already married, planning is key to best personal and financial outcomes for you, your spouse, and your family. Call our office today at 480-922-1010 or email info@bivenslaw.com to schedule your complimentary estate planning consultation- we can help guide you.