The Elder Law Minute: Is it better to remarry or just live together?

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By Ronald Fatoullah, Esq. and Lian Kuang, Esq.

Finding love later in life may be unexpected and exciting, but should it lead to marriage? For an older couple, the decision to marry or not may involve very different considerations than for a young couple.  For example, an older couple may have adult children whose inheritance rights will be affected by marriage.  Before deciding whether to get married or just live together, several issues must be considered.  Among other things, these issues include your estate plan, your Social Security benefits, and your potential long-term care needs.

The follow are some issues to think about:

  • Your Estate Plan. Getting married has a significant effect on your estate plan. In New York, your spouse is protected against being disinherited.  Your spouse is entitled to the greater of $50,000 or one-third of your estate.  This right is called the “right of election.” Therefore, even if your new spouse is not included in your will, your new spouse has a right to a share of your estate by New York law.  Often an older individual may have already set up their estate plan to provide for his or her adult children and/or grandchildren.  If your intent is not to provide for your new spouse or to provide less than the “right of election” amount, you should consider entering into a prenuptial agreement.  The prenuptial agreement can provide, among other provisions, that you and your future spouse agree to waive your “right of election,” meaning that you each agree not to take anything from your spouse’s estate.  Setting up inheritance by beneficiary designation or other methods that avoids probate will not defeat a new spouse’s “right of election.”
  • Long-Term Care. Long-term care costs, such as home care or nursing home care, can be extremely high.  Nursing home costs can range from $10,000 to $15,000 per month in the New York City metropolitan area.  Marriage creates a financial responsibility between spouses for each other’s health care costs.  No trust or prenuptial agreement will release a spouse from being responsible for his or her spouse’s long-term care costs. Eligibility for Medicaid coverage of home care and nursing home care costs changes when you marry because your new spouse is now a “legally responsible relative” for Medicaid purposes.  Before getting married, it is essential that you create a plan for long-term care expenses with an elder law attorney. This plan may include the purchase of a long-term care insurance policy.
  • 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 you pass away. If you want the home to go to your children, you should not be adding your new spouse on the deed. However, you may not want your heirs to evict your surviving spouse once you pass away. One solution is to transfer the home into a living trust that will give your spouse the right to use and occupy the home for the remainder of your spouse’s life. Once your surviving spouse dies, the house will pass to your heirs. It is important to note that even though the house will pass to your heirs, your surviving spouse still has the right to elect a share of your house if he or she did not waive the “right of election” as mentioned above.
  • Social Security. Many divorced or widowed seniors receive Social Security based on their former spouses’ work record.  Remarriage can affect the continuing eligibility for benefits under a former spouse’s work record. If you are a divorced spouse receiving Social Security based on your former spouse’s work record, your remarriage will terminate your Social Security under your former spouse’s work record.  The benefit may resume if your later marriage ends, whether by death, divorce, or annulment. If you are a widow, widower, or surviving divorced spouse receiving Social Security based on your deceased spouse’s work record, you can continue to receive your benefits if you remarry after age 60 or after age 50 if you are disabled.
  • Maintenance Award (commonly known as Alimony). In New York, maintenance is the term referred to financial support awarded to a divorced spouse. If you are receiving maintenance from a divorced spouse, it will likely end once you remarry.
  • 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.

So, before you say “I do”, think carefully about your options and consult with an estate planning/elder law attorney to make sure that your assets will go where you want them to.

Ronald Fatoullah is a leading expert in the fields of elder law & estate planning. He is the founder and managing attorney of Ronald Fatoullah & Associates, a law firm concentrating in elder law, estate planning, Medicaid eligibility, special needs, trusts, guardianships, & probate. He is certified as an elder law attorney by the National Elder Law Foundation, and he is the current Legal Committee Chair of the Long Island Alzheimer’s Association.  The firm’s offices are conveniently located in:  Long Island, Queens, Manhattan & Brooklyn and can be reached at: 1-877-Elder Law 1-877-Estates. This article was written with the assistance of Lian Kuang, Esq., an elder law attorney with the firm.