Navigating Late-Life Remarriage

The subject can be tricky

Illustration by Gloria Diianni

When a gray divorcée or a widower once again takes the plunge without proper planning, the bridal bouquet might be filled with an awful lot of thorns.

“A late-in-life remarriage can absolutely get complicated,” says Jamie Gillis, an estate planning and elder law attorney with Primmer Piper Eggleston & Cramer PC in Manchester. “Very complicated.” How much of your hard-earned assets, if any, do you want to leave to your new beloved if you die first?

What would you like your biological kids to inherit? Or the step-children?

If you die, does your new spouse have the right to remain in the house you own? Even if she moves in a new flame or marries him?

How does the change in marital status affect your Social Security, other benefits, pensions and IRAs? Who gets them?

Can your assets be tapped, or even drained, to pay for the long-term nursing care of your new husband?

These are only some of the complex and vexing questions confronting seasoned citizens, especially those who have been married before, who now intend to walk down the aisle again.

Among Americans aged 55-plus, 53 percent are in a second or subsequent marriage, according to Pew Research. Moreover, the relatively new nationwide legalization of same-sex marriage will drive those numbers higher.

But if you don’t know your legal rights and responsibilities or fix any money matters up front, it’s a sure bet you’ll run into issues later.

Death, and the very high likelihood that one spouse will outlive the other, is inevitable. But also consider that the divorce rate among those who remarry in their golden years is 60 percent. That’s far higher than the rate of any other segment of the population, and experts expect it may climb even higher.

“If late-life divorce were a disease, it would be an epidemic,” writes Dr. Jay Lebow, a psychologist at the Family Institute at Northwestern University.

Consequently, before booking the chapel, it’s advisable to answer many of those thorny Qs with the proper Ps: planning, protection, pre-nuptials and post-nuptials.

When it comes to the pre-nups and post-nups, they are worth their weight in gold — but only if they’re iron-clad.

“These types of agreements establish rights and obligations not only upon death, but also upon separation or divorce. They carry a presumption of validity, but, as is true of any contract, there is always a risk that they will be challenged or invalidated, so proper drafting and procedure is essential,” says Gillis, a member of the National Academy of Elder Law Attorneys.

It’s tough enough at this stage of the dating game to find that truly special someone with whom you can recapture the magical, magnificent and magnetic power of love, romance and companionship.

But as you’re hopefully heading off to live your happily-ever-after, trying to unify families with adult children and even grandchildren can rip the bloom right off the rose mighty fast.

Make sure your wedding makes you cry for the right reasons.

“Estate planning is particularly important for people who remarry and have the additional complications of blending families and assets. These situations are often ripe for discord, which can result in costly litigation,” says Gillis.

“The situation I see most often [in later-in-life second marriages] is that they each have their respective adult children, are protective of their children and are not necessarily attached to their spouse’s children,” Gillis continues. “There are competing interests where they want to provide for the spouse, but they also want to make sure there is something provided for their children.”

An extremely dicey situation can arise when partners enter into the relationship in considerably different and disparate financial situations.

Feeling as though he or she is prying, and/or perhaps deeming oneself to be unworthy, the less-wealthy spouse may be hesitant to even ask about the other’s net worth and holdings. Sometimes, the partner who is more flush doesn’t want to disclose details.

“When one spouse enters a marriage with substantially more assets than the other, the situation is generally more complicated,” says Gillis. “Because whether it is the negotiation of a pre-nuptial or post-nuptial agreement or the structuring of a plan, there is one spouse who may be in a stronger position due to the different economic positions. The wealthier party is understandably more likely to want to control the distribution of his or her wealth, which can lead to a host of issues if there is disagreement among the parties or where one spouse feels he or she doesn’t have a voice,” says Gillis.

“Honesty is the best policy” may be trite, but it’s true. Although these discussions and decisions can be difficult, particularly when the partners disagree, openness and transparency are paramount.

Being deceitful, or doing nothing at all while taking the approach, “I’ll be dead, so what do I care?,” only sets up the worst-case scenarios.

“Estate planning requires difficult conversations under the best of circumstances, but it is inevitable that decisions about a person’s health care and the management and distribution of their property will have to be made,” explains Gillis. “The only question is whether the person will participate in the discussion and provide instruction, or leave the family, and possibly the courts, to make the decisions and deal with the aftermath,” adds Gillis. “Nobody likes to have these conversations, but they are necessary.”

Now that society no longer casts aspersions upon consenting adults cohabitating and women have gained more financial resources and greater financial independence, wouldn’t it be simpler and easier to chuck the pre-nups, skip the wedding and simply live together?

“I’ve never had that happen. Generally, people can work it out,” says Gillis. “They have to focus on the different options. Anything is really possible, for the most part, within the confines of the law. If I can get people to voice what it is they really want, we can almost always structure a plan around that.”  

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