Although senior citizens are aging, their hearts remain young. Marrying later in life to establish companionship is a route that many people take. For many older people, there is nothing stopping them from continuing their adventures and at the same time enjoying their extended families.
However, if older people marry late in life, how should they handle estate planning? Most people in their seventies or even eighties still have their mental capacity to make proper estate planning decisions. However, as people reach their late eighties and nineties, there is more likelihood they may have diminished capacity.
Therefore, prior to marrying or re-marrying, older people should consider putting their estate plans together so they cover their intentions.
People marrying in their later years confront a variety of issues that younger couples do not face. For example, they may have accumulated considerable assets separately and may both have children from earlier relationships.
Getting married has a range of financial implications when it comes to Social Security, receiving alimony from a former spouse, Medicaid, retirement benefits, taxes and health insurance. For these reasons, many people decide to live together, rather than marry.
But if you are considering tying the knot later in life, here are seven questions to consider:
1. Where Are You Going to Live?
When you marry, you will have to choose a place to live. If you own, do you give it up to live with your partner? Or should you have your partner move in with you? Or do you find a new place to live? What happens if you move and then your partner dies? What happens if your partner lives with you and you pass? Who inherits the real estate and property?
Some of these issues can be handled with a revocable trust or maintaining a life estate. So, if you move into your partner’s home, you can have a life estate set up or put the house in a trust so you can live there. A trust or a life estate protects you from uncertainties when one of you passes. Also, it allows for you to pass your inheritance to other family member while allowing you or your partner to be taken care of in your lifetime.
2. How Are You Going to Pay for Your Expenses?
You may need to look into Medicaid planning in case one of you has to go into a nursing home. Forming a supplemental needs trust may help you avoid paying your assets for nursing home expenses — and yet still obtain Medicaid to help pay the bill.
3. Who Will Make Financial Decisions if You Need Help?
It is important to have a Power of Attorney in place in case you need someone to help with your banking and finance needs. Your new spouse could be your attorney-in-fact, in other words, the person who has a right to handle your finances when you cannot do so. Or perhaps you have another family member or friend who can be the attorney-in-fact. If you marry later in life, your spouse may eventually have diminished capacity too, so it is important to pick someone who can be there for you over the long term to make financial decisions.
4. Who Will Make Your Health Care Decisions if You Become Incapacitated?
This decision is very important. So many times, family members dispute who should make health care decisions — especially if you have children and have remarried. If the children do not agree with your new spouse, this can cause complications. Be very careful to draft a health care proxy so people know who can make decisions for you.
5. If You Have Assets for Distribution, Who Will Receive Them?
If you marry later in life, you may not want all of your assets to go to your new spouse. You may have children from a previous marriage, grandchildren, nieces, nephews or friends that you have known for years that you would like to designate as beneficiaries. Testamentary trusts that become active when you pass could be a way to help you distribute your assets to your family and friends while at the same time providing for your spouse during his or her lifetime. Also, you should also consider drafting a written prenuptial agreement that outlines who gets what upon death.
6. Who Is Going to Run Your Estate?
You need to pick a person to be the personal representative or executor of your estate. You may also need to pick a trustee. If you choose your new spouse, you should also select a successor representative so if your spouse is incapacitated or unable to handle the estate, you have someone else that you trust to handle it.
7. If You Have Children, How Are they Going to React?
If you have children and you remarry late in life, the children may feel threatened by your new spouse. They may have concerns in regard to inheritance, finances and health care decisions that will be made for you. Addressing these issues with your children can go a long way toward promoting family harmony and helping your family members accept your new spouse. Talk with your children before you get married so they know that you will protect their interests while at the same time allowing yourself the happiness you deserve.
There are likely many decisions to make and documents to sign if you tie the knot later in life. Both parties should consider drafting new wills and a prenup. Consult with your estate planning attorney about these matters prior to the ceremony.
This article only discusses some of the estate planning issues involved with getting married.
What Happened to One Couple in their 90s
In one case, some family members objected when a 96-year-old man married a 95-year-old woman in Virginia.
The woman had been declared legally incapacitated and had two legal custodians. One of the custodians went to court after discovering the marriage. (The other custodian had driven the couple to the courthouse for the ceremony.)
An attorney for the family member opposing the union said it complicates the issue of how the woman’s estate will eventually be distributed. A judge removed the guardians, who were relatives, and appointed an attorney instead to investigate the circumstances of the marriage and to protect the best interests of the woman.
