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Remarriage – Partner: Getting Real in Estate Planning

In our last blog (Getting Real in Estate Planning: Tough Talks), we wrote about the difficult or sensitive conversations estate planning lawyers have with their clients. It’s what we must do to ensure your estate planning goals are achieved which is why listening and knowing what to ask are so important.  The first topic we address is remarriage.  Remarriage might mean you start over in love, but it also often means you have double of everything – home, children, assets and unfortunately, new issues to address in your estate plan.

Remarriage – Partner

Statistics show that Seniors are more likely to remarry than most any other age group. Further, that the remarriage percentage has increased over time. (In the 55 and older crowd, 57% remarried in 2013 versus 42% in 1960).

When Seniors remarry there are many tough decisions and issues that they need to deal with. Many want to remarry and have a formal marriage because that is what they know culturally or by faith, and what they have done. Many people do want a “Partner”, someone to share time, ideas, experiences, etc. As people age they are more aware of their physical limitations and they are seeing friends and contemporaries decline physically and mentally. They are aware that the “Clock is Ticking much Louder”. They are aware that time is moving by. My father said, “The older you get, the faster time moves”. The Senior may have more of a desire for a relationship and experience than they did at an earlier time in their life when they may have been focused on career advancement (Conquering the World) and child rearing.

One elderly lady told me that she thought there were three (3) loves in your life: (1) your First Love, (2) The one you have Children with, and (3) your Soul Mate. You are really fortunate if you have all three (3) in one person. In the book “Lucky in Love”, the author’s contention is you are “lucky” if you are one of the 50% of marriages that don’t end in divorce.

Many of my clients are widows or widowers and miss the companionship or intimate friendship. They want that “Partner”. “A witness to their Life”, as it is stated in the movie “Shall We Dance”.

What about Marriage versus Living Together?

For many Couples traditional marriage is known and all that is talked about. However, legally and economically they may be better off just “Living in Sin”. One of the big reasons is the change in the law in regards to Nursing Home Expense. This expense is often paid by Medicaid out of the tax dollars you have paid into the government over decades. First however, the government wants you to “spend down” your assets for the nursing home expense of your spouse before Medicaid picks up that expense.

In the past a Couple could do a Pre-Nuptial Agreement and the new Partner’s assets would not be “counted” in considering Nursing Home Expense for their new Partner. In other words, only the assets of the person going into the Nursing Home were considered for Medicaid purposes. However, the law has been changed so that if you have been married for thirty (30) seconds, or less, your assets are suddenly at risk for your Partner’s Nursing Home Cost. Given that Nursing Home expenses are often $7,000 to $9,000 dollars a month, or higher here in North Carolina, that’s a massive hit. When my mother was in a Skilled Care Facility at the end of her life, the costs were regularly $8,000 plus dollars a month. It was like pouring a pitcher of water into the desert.

Even if you are “in love” you may not want to be nearly wiped out financially if your Spouse goes into a Nursing Home Facility. If you have been married for thirty (30) seconds, or less, the Government will look to your Spouse to “pay down” the bulk of all of your joint and separate assets to cover their Nursing Home Expense. You still may keep your residence, some savings, a motor vehicle and other related costs for the spouse not in the nursing home, but much of your other savings and investments can be depleted before Government Assistance (Medicaid) comes in to pay the Nursing Home expense. This is not the case if you are “Living” with the person. This is only the case if the Couple is “married”. Again, even if they are only “married” for only thirty (30) seconds (or less).

No Marriage License

In North Carolina you are not considered married unless there is a “Valid Marriage License”. There is no “Common Law” marriage in North Carolina at this time. However, there is in Georgia and other States.

Some Couples will have a “Ceremony” where they exchange vows and make emotional and verbal commitments to each other, but do not have a Marriage License. This is something that a Couple should consider given the exposure of the Nursing Home Expense if the Couple is married and one partner goes into a nursing home.

These are some of the tough issues that come up in the “Tough Talk” I have with my clients if they are looking to “Remarry” or “Cohabitate”.

We will discuss other “Getting Real: Tough Talk” issues in our next Blog

At the Law Firm of Steven Andrew Jackson, Attorney and Counsellor at Law, we have helped hundreds of families protect themselves and their loved ones, avoid Estate Taxes and Probate Costs, and keep their Estate Plans current with the law through The Customized Protective Estate Planning Solution™.