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Gray marriage: Later-in-life unions can lead to legal issues

As baby boomers age, it’s no surprise that America’s population of people over the age of 65 is getting bigger than it has ever been.

One less than obvious consequence of this is that more people living past middle age are getting remarried.

In 2013, two-thirds of previously married adults between the ages of 55 and 64 had remarried, and 50 percent of adults over the age of 65 had remarried, according to a study conducted by the Pew Institute. This number is expected to continue to increase in the near future, as life expectancy increases.

Marriages later in life can often lead to legal complications, according to family and elder law attorneys from around Virginia. These complications can be further exacerbated by the existence of adult children. However, elder lawyers agree that with proper planning, they don’t have to.

Andrew H. Hook, an elder law attorney in Virginia Beach, said that proper legal planning and communicating those plans to new spouses and family members are the keys to avoiding messy conflicts stemming from late-life remarriages.

“Their first reaction is, ‘We trust each other,’” Hook said. “It’s easy to go with the flow and create a simple plan, but those simple plans can really blow up on them later. They’ve got to think through delivering some hard realities of what could happen.”

Regardless of whether the spouses have children, Hook said that it’s important that clients consider prenuptial agreements prior to any remarriage.

“You don’t like to think about it, but there’s a fair number of divorces on second marriages,” said Hook. “It’s important that clients discuss what happens in the event of a divorce.”

Hook also said lawyers should advise clients to consider keeping separate bank accounts, and also separate legal counsel to ensure that their best interests are the driving factors behind any legal decisions relating to the marriage.

“Think through it fully. Can you represent both parties?” he said. “What happens if one needs a nursing home, or if one has more assets? How are they going to feel about spending issues? What happens when one applies for Medicaid, but the other wants to protect their assets? It gets difficult.”

To complicate matters even more, elder attorney Robert W. Haley of Bassett said that many clients are often surprised to find that prenuptial agreements are not recognized by Medicaid in Virginia.

“If one spouse goes into the nursing home, all assets from the couple are taken into account on a Medicaid long-term care coverage application,” he said.

Hook said the marriage itself can also impact eligibility for government and work-related benefits such as Medicaid, workplace healthcare plans and pension plans.

“You’re liable to provide necessities for your wife or husband,” he said. “And if they can’t get assistance, it can put a financial strain on the relationship.”

But what happens when one or both spouses already have adult children?

Fairfax elder lawyer Elizabeth L. Gray advised attorneys to dissuade clients from relying on their adult children to act as fiduciaries under powers of attorney or executors. She said it’s important to advise clients to find an independent arbiter whom they trust to ensure their wishes are carried out after they’re gone.

“You want them to consider using a professional fiduciary instead of their kids, step-kids or anyone else with a glimmer of bias,” she said. “It surprises me how often kids feel they’re entitled to inheritance.”

While it’s not uncommon for children to take steps to disinherit their stepparents, when given the keys to the castle, Hook said the same holds true when the new spouse is the sole beneficiary of a simple will.

“You want to take care of your new spouse, but you also don’t want your kids disinherited. It’s worth thinking about setting up trusts instead of outright gifts,” he said.

Hook also stressed the importance of picking the right person to make sure that a client’s will is followed.

“Carefully think about who the trustees are who will manage the assets,” he said. “You have to be careful that you get a trustee that’s willing to implement this, to do the right thing, with the right plan in place, because otherwise, you’ll find they’ll want to resign and walk away from it.”

Hook said that because such conflicts can turn ugly very quickly, he advises any elder lawyer or family law attorney to consider updating their training in trial law.

“Dispute resolutions should be a part of your practice,” he said. “A big part of this is these blended families. You can have these issues without the blended family, but when you bring in stepchildren, the likelihood of it happening increases.”

While conflicts are unfortunately more common in late-life marriages, and especially ones with blended families, Gray said many issues that come after a client’s death can be avoided by advising clients to communicate their wishes to their new spouse and children.

“I advise clients to have family meetings to address their expectations,” she said. “So they know what to do if [the client] becomes incapacitated, if one spouse dies, or if both die.”

Gray said families might consider hiring a mediator to help explain the legal rationale behind their plans, especially when they have the potential to diminish from the spouse’s or the children’s inheritance.

“Kids are so surprised about it, but when they realized why it’s necessary, they’re normally better about accepting it,” she said.

But ultimately, Gray said it’s up to the attorney to broach the uncomfortable topic early on, to prevent messy conflicts from arising down the road after the client has passed away.

“The trend is to not deal with these conflicts and I think the best thing to do is take them head on,” she said. “Parents need to address these issues with their kids, as difficult as it may be.”