Midlife marriage estate planning myths: busted!

By Stephen J. Silverberg
New York Elder Law Attorney

When it comes to mid-life marriages, there’s no end to the myths and mistakes that people make. If you have children from a prior marriage, there are a number of “to-do”s that you should take care of before you get to “I do.” And in some instances, exploring these tasks may shed a lot of light on your intended’s values and approach to handling money matters. Remember, these are myths…

Prenups Are Just for The Rich and Famous. Not true. If you’ve been married before and have children from a previous relationship, a prenuptial agreement isa must to ensure that your assets will pass to your children from the prior marriage. Even in a first-time marriage, there still might be a need for a prenup, especially if you own significant assets and your spouse-to-be does not.

Don’t think of a prenup as preparing for divorce, but rather more like writing your will. If you don’t have your affairs in order, the state will decide for you—just like dying without a will. After age 50, the focus of a prenup should be on protecting your children and grandchildren. For instance, some states allow a surviving spouse to claim his or her “elective share” instead what’s in the decedent’s will. A prenup allows your spouse to waive the elective share. That means the odds are that your estate plan won’t be challenged by your surviving spouse.

Don’t Talk Estate Planning with Your Stepfamily. Estate planning is critical especially when you have children from an earlier marriage.  Otherwise, your entire estate could pass to your new spouse and not to your own children. Discuss your estate planning and prenup with your adult children and your new spouse. This will alleviate some concerns adult kids may have about how their parent getting married will affect their inheritance. We’ve seen families fragment when a parent dies, when a few conversations might have kept a blended family together.

Holding Assets Jointly Is Always Preferable. Long before getting married, couples should decide on whether they want to have separate or joint accounts.  If you both own homes, will one or both of you sell your home? And if one of you sells their home, will the deed to the house you live in be changed to reflect join ownership? It is best to have these discussions long before the wedding ceremony.

Your New Spouse’s Debt Won’t Impact You. This is big. Marrying a person with much debt, whether it’s college loans or credit card debt, can be a major issue in second marriages. Therefore, spouses should be upfront and candid about their debts before marrying. That way they can plan how to address the debt.  Remember that a bad credit rating will impact the kind of mortgage you can get, the cost of a car loan, and many other financial factors.

It Always Makes Financial Sense to Get Married. This is not always true. It depends on your personal and financial circumstances. Tying the knot may reduce your Social Security benefits, especially if you didn’t work while you were married the first time and can claim spousal benefits that are much higher than your own Social Security benefits. If you have an ill or disabled partner on Medicaid, then you might want to stay unmarried so he or she can to continue to qualify for benefits. The combined marital income might make your partner ineligible for Medicaid. This requires smart, clear-headed planning.

Your Spouse Automatically Has a Right to Make Medical Decisions for You.  This statement is not true. If there’s no advance health directive in place that details your wishes regarding end-of-life care, it’s not a certainty that your new spouse can make medical decisions for you or tell your doctor what treatment you’d want. Be clear in writing your wishes , so your new spouse and your adult kids will not fight over your care. Talk with your new spouse and your adult children, so they know your wishes and set up an advance health care directive. This should be part of your estate plan, which should also be revised to reflect the new marriage.

These six common myths, from Forbes’ recent article  “6 Money Myths About Marrying After 50,” are just a starting point. If you are thinking about getting married in mid-life, you’ll want to come in for a conversation about an estate plan to make sure that your will and other estate planning documents reflect your new marital status.

About the Author
Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning, and elder law. He is a past president of the prestigious National Academy of Elder Law Attorneys (NAELA), and a founding member and past president of the New York State chapter of NAELA.