New York Estate Planning & Elder Law Blog
Second marriage planning always presents families with unique issues to consider regarding planning for their future. Those concerns are often made more urgent when the marriage occurs late in life. When local residents with children enter into one of these marriages it is particularly important to contact a New York elder law estate planning lawyer for assistance.
Last week the New York Times blog, The New Old Age discussed the myriad of issues that arise with late-life marriages. A common theme involves the amount of intermingling that spouses want between each of their separate assets and income during their lives, in case of divorce, and after death. For example, how much of one spouse’s assets can be used to pay for the medical bills of the other spouse? Medicaid concerns must also be factored into the planning. Rules usually dictate that assets of both spouses are considered when one is attempting to qualify for Medicaid. An elder law attorney should be consulted so that these issues can be discussed and couples can strategize.
Late-life marriages may also have effects on Social Security benefits and taxes. The ability of one spouse to draw benefits based on the former spouse’s earnings could be altered in these cases. Remarriage before the age of sixty usually cuts off that Social Security benefit. Couples must also decide whether to file taxes jointly or separately. The decision determines what tax bracket the couple falls into and may shift tax mistakes of one spouse onto the other.
Those in late-life marriages must give careful thought to how it will affect their property distribution upon their death. An older spouse who has specific plans about how to leave his or her estate must recognize the role that their new spouse may play in that decision. Surviving spouses almost always have the option of taking an elective share of the other’s estate unless other arrangements are made beforehand. A prenuptial agreement may be important in those situations.
In addition, placing assets in a trust is often a helpful way to avoid many problematic family issues upon the death of one spouse. If this approach is used, our New York estate planning attorneys often recommend naming a co-trustee who is not a family member. This act helps to ensure that a counselor is involved in the process to balance the various interests, ensure fairness, and take the pressure off surviving family members. There remains no ethical prohibition against an attorney recommending himself for this role. The lawyer is capable of working with the surviving spouse to invest for her benefit while protecting the trust for the benefit of the heirs.
In all cases if a late life marriage occurs it is important to update older estate planning documents and account for the additional planning issues that come with the new life situation.
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