Tag Archives: The Elder Law Minute

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

| rfatoullah@queenscourier.com

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. 

The Elder Law Minute: The Pitfalls of Do-It-Yourself Legal Documents

| rfatoullah@queenscourier.com

A good portion of our practice is comprised of meeting with new clients, collecting their pertinent information and coming up with a strategy that incorporates both estate and/or elder law planning that meets their specific needs. We typically ask to review a client’s prior estate/elder law documents during the consultation if, in fact, any planning had been done previously. All too often we come across documents that were prepared by individuals without the expertise of an attorney and the results are frequently quite similar. These individually-prepared documents are usually lacking the protection that is required and can unfortunately lead to dire consequences. Documents that ostensibly seem easy to prepare and execute are often subject to specific and frequently subtle nuances that only an experienced practitioner will be familiar with.

Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated. The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes.  Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make such decision. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration either in the actual health care proxy or in a separate living will. Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place. Secondly, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again- this requires the help of someone with experience.  Finally, the document must be witnessed by two individuals in order for it to be validly recognized. A person should not have his agent, spouse or child be a witness to the signing.

We see even more problems in the area of powers of attorney. The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated. Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. Firstly, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.

The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Further, any additional powers beyond those enumerated in the statute, must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory. Accordingly, if someone decides to cut corners and download a form from the internet, this may result in a tremendous disservice because if the form is not statutory, it does not have to be legally recognized. The power of attorney is an extremely important tool for estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied. It is imperative to have this document prepared by an experienced practitioner.

A last will and testament is yet another document that must be prepared under the supervision of any experienced attorney. After the person who executed the will dies (the “decedent”), the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process.

The examples described above provide a small illustration of how self-drafted documents, perhaps initially done to minimize costs, can result in poor planning and the ultimate outlay of unnecessary legal fees to correct the damage that was done. It makes far more sense to do it right the first time.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, NY. Mr. Fatoullah has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also served on the Executive Committee of the Elder Law Section of the New York State Bar Association for over 15 years. Mr. Fatoullah has been Certified as an Elder Law Attorney by the National Elder Law Foundation. Mr. Fatoullah is a co-founder of Senior Umbrella Network of Queens. This article was written with Debby Rosenfeld, Esq., a senior staff attorney at the firm. Ronald Fatoullah & Associates can be reached by calling (718) 261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.