The “Golden Years” – that peaceful time of life after retirement; a time to watch the grandchildren grow up, to take that long-awaited vacation and to….get married? Statistics indicate that both men and women are getting married later in life, and although the rate of marriage and remarriage significantly declines with age, an estimated 500,000 Americans 65 and older get married (or remarried) every year.
While marriage at any age raises a number of legal and financial concerns, individuals 65 and older who marry later in life tend to bring significantly more assets to a marriage than individuals who marry earlier in life. In addition, those entering into in these later-life marriages are more likely to have adult children, and even grandchildren. For these reasons, it is critical that those who rediscover love during their “Golden Years” be mindful that the failure of these types of marriages can create complex estate planning legal issues.
A unique problem for later-life marriages involves potential disputes between a surviving spouse and the adult children from a previous marriage. Most states require that a portion of the deceased spouse’s estate pass to the surviving spouse. This portion is known as the elective share. In New York, that share is equal to 1/3 of the deceased spouse‘s estate. New York, like most states, does not allow the disinheriting of a spouse to his elective share unless the spouse to be disinherited legally consents. Consequently, spouses who want to determine the terms of possession of their assets upon their death should consider creating a prenuptial agreement, one made by the spouses prior to marriage that concerns the ownership of their respective assets in the event of divorce. Without a prenuptial agreement, a “Golden Years” divorce has the potential to lead to a disastrous, and often disheartening, outcome.
Take the hypothetical later-life marriage of John and Nancy. John took the steps to create a new will once he married Nancy, generously leaving her $75,000 and the rest of his million dollar estate in equal shares to his three daughters from his previous marriage. John and Nancy did not, however, create a prenuptial agreement. Upon John’s death, Nancy could, under New York law, claim her elective share of John’s estate if she so desired, leaving her with far more than the $75,000 designated by the will…and leaving his three daughters with far less. One can only imagine the nightmare this could create where the relationship between Nancy and John’s three daughters was already contentious. A well-drafted prenuptial agreement between John and Nancy would have allowed each of them to structure his estate as he desired, thereby avoiding a distribution that may have John rolling in his grave.
Indeed, marriage at any age can be exciting and fulfilling, yet newlyweds in their “Golden Years” must be sure not to let their love blind them to the critical role a prenuptial agreement can play in later-life marriages where one or both spouses has children and grandchildren and/or substantial assets that were acquired before the marriage.