Seven Things an Elder Law Attorney Wants You to Know about Grey Marriage & Divorce
The statistics are clear—more and more folks over 65 years of age are getting divorced. They are also still getting married. With age comes a greater prevalence of illness and incapacity. With subsequent marriages comes complications—adult children, money, and property. When these issues clash, the result often ends up in Court, where attorneys on both sides are fighting for hundreds of dollars an hour. Who loses? The whole family. As a transactional attorney, I don’t want to be involved in Courtroom fights—it is a last resort, and if we plan properly and everyone keeps their word, it can be avoided. So how do you plan from the beginning, and what do you worry about?
1. Get a Prenuptial or Postnuptial Agreement:
Marriage brings with it certain rights, including the rights to equitable division of property and alimony upon divorce, and elective share, family allowance, homestead, and division of property upon the death of the first spouse. When both spouses come into the marriage with established finances and adult children, it is important to carefully determine what is yours, mine, and ours. This should be done with separate counsel and full disclosure of assets.
2. Ensure that the Estate Plan compliments the Prenuptial Agreement:
Each person must have an updated estate plan that works with the Nuptial Agreement, and preferably, references it. If the Nuptial Agreement waives Elective Share, the Estate Plan cannot include it. Sometimes, this means an estate plan that has three trusts—yours, mine, and ours. The homestead must also be considered.
3. Give Greater Thought to the Incapacity Plan:
When someone receives a diagnosis that could lead to mental or physical incapacity, what is the plan? What if there is an accident and the disability is sudden? This is more than is covered in the standard Durable Power of Attorney, Advance Healthcare Directives, or Living Will. It’s often nuanced and complicated and not everyone agrees. The adult children (sometimes well-meaning, sometimes after the money) often swoop in to “help.”
4. What if the couple has different care needs?
Who pays? Is there insurance? What if the children are out of town? What if the couple wishes to be able to pay more in order to get care in the home to remain together? Who determines if this arrangement is safe and affordable?
5. What if Medicaid is Needed?
Medicaid helps pay for long-term care. If someone does not have millions of dollars or long-term care insurance or high income, they may need Medicaid benefits to cover the cost of their long-term care. A nursing home in our area is between $12,000 and $15,000 per month all in. Not many middle-class families can afford that. So, when making an estate and incapacity plan, and even when making a nuptial agreement, Medicaid planning should be contemplated.
6. Consider the Homestead:
What happens if the property is owned by one spouse or the other? Would the survivor be able to live there? What expenses would they be responsible for? What if it became unsafe to live there?
This is where things land when it gets messy, and one of the spouses become mentally incapacitated, or, decide they need the help of the Courts. If all the best laid plans fail, and the Court gets involved, the Judge will name a Guardian for the incapacitated partner. That guardian will have an attorney charging $350 per hour or more. The other side may also get an attorney charging the same. There may also be a professional guardian appointed, charging $100-$150 an hour. What happens to the incapacitated person? It’s up to the Court. I advise my clients to avoid guardianship at all costs—but sometimes, it is necessary.
Now what? Did you read this and have more questions than answers? Contact SAMUELS WOOD PLLC for a consultation.