Finding love later in life may be unexpected and exciting, but should it lead to marriage? The considerations are much different for an older couple with adult children and retirement plans than for a young couple just starting out. Before deciding whether to get married or just live together, you need to look at your estate plan, your Social Security benefits, and your potential long-term care needs, among other things. Whatever you decide to do, you may want to consult with your lawyer to make sure your wishes will be carried out.
Here are some things to think about:
- Estate Planning. Getting married can have a big effect on your estate plan. Even if you don't include a new spouse in your will, in most states spouses are automatically entitled to a share of your estate. You caan't disinherit your spouse in New Jersey, even if you try to do so in your will. A spouse is eentitled to an "elective share," which is determined by a complicated method of calculation but is generally summarized by saying it is roughly one-third of your estate. One way to prevent a spouse from taking his or her share is to enter into a prenuptial agreement in which both spouses agree not to take anything from the other's estate. If you want to leave something to your spouse and ensure your heirs receive their inheritance, a trust may be the best option.
- Long-Term Care. Trusts and prenuptial agreements, however, won't necessarily keep a spouse from being responsible for your long-term care costs or vice versa. In addition, getting married can have an effect on your or your spouse's Medicaid eligibility. New Jersey Medicaid does not recognize pre-nuptial agreements. By remarrying late in life, you may subject your assets to exposure if your new spouse requires lon term skilled nursing home care. Notg only that, Medicaid can force an institutionalized spouse to claim an elective share if the well spouse dies first and tries to leae his or her estate to the children of the first marriage. If you can afford it, a long-term care insurance policy may be a good investment once you remarry.
- The Family Home. Whether you are getting married or just living together, before combining households you will need to think about what will happen to the house once the owner of the house dies. If the owner wants to keep the house within his or her family, putting the house in both spouse's names is not an option. On the other hand, the owner may also not want his or her heirs to evict the surviving spouse once the owner dies. One solution is for the owner of the house to give the surviving spouse a life estate. Once the surviving spouse dies, the house will pass to the original owner's heirs. The creation of a properly-drafted trust may be the answer, but you must make sure not to fall into one of the many traps Medicaid rules have in store for the elderly.
- Social Security. Many divorced or widowed seniors receive Social Security from their former spouses, and remarriage can affect benefits. If you are divorced after at least 10 years of marriage, you can collect retirement benefits on your former spouse's Social Security record if you are at least age 62 and if your former spouse is entitled to or receiving benefits. If you remarry, you generally cannot collect benefits on your former spouse's record unless your later marriage ends (whether by death, divorce, or annulment). However, if your are a widow, widower or surviving divorced spouse who remarries after age 60, you are entitled to benefits on your prior deceased spouse's Social Security earnings record.
- Alimony. If you are receiving alimony from a divorced spouse, it will likely end once you remarry. Depending on the laws in your state and your divorce settlement, alimony may end even if you simply live with someone else.
- Survivor's Annuities. Widows and widowers of public employees, such as police officers and firefighters, often receive survivor's annuities. Many of these annuities end if the surviving spouse remarries. In addition widows and widowers of military personnel may lose their annuities if they remarry before age 57. Before getting married, check your annuity policy to see what the affect will be.
- College Financial Aid. Single parents with children in college may want to reconsider before getting married. A new spouse's income could affect the amount of financial aid the college student receives. Some private colleges may even count the combined income of a couple that lives together if they commingle their expenses.
I have often said that planning for the elderly is tricky and intensely case-specific. You can't rely on what someone else told you. In the first place, you may have received wrong information or only some of the facts. In the second place, the law is in a constant state of flux. Before taking the plunge in later life, it's a good thing for you to find out what your options are by consulting an experienced elder law attorney.