Gray Marriage Can Create Unique Legal Challenges

            With the average life expectancy rising so are the ages at which people are getting remarried. These marriages later in life, known as “gray marriages,” can lead to legal complications, especially when one or both of the people getting married have adult children. This article will provide important steps to take to avoid conflicts caused by marriages involving those over 55.

Plan for the Worst

            Thinking about your marriage possibly ending is uncomfortable for any couple, but it is important to plan, even more so for those entering into a gray marriage. Most of the time those over 55 have their lives in order and introducing someone new into the intimate parts of their lives can cause huge disruptions. Therefore, someone entering into a gray marriage must plan for the worst to make sure his or her future is secure.

Prenuptial Agreements

A prenuptial agreement will not only protect retirement savings in the event of a divorce, but also ease any children’s minds about the possibility of “gold digging” or loss of inheritance. Nipping this huge potential problem in the bud is a great step toward a stress-free marriage.

Keeping Assets Separate

Those entering a marriage after 55 should also consider keeping separate bank accounts. Separate bank accounts will ensure spending is controlled from both sides. This is even more important than when people are younger because those 55 and over are close to retirement age and will be counting on their savings. A prenuptial agreement would also be nearly worthless if one of the spouses spent all of the other spouse’s money during the marriage.

Separate Legal Counsel

Keeping separate legal counsel will ensure everyone’s best interests are retained. There may be tough decisions down the line like putting one of the spouses in a nursing home, or when one spouse wants to apply for Medicaid and the other doesn’t. If only one lawyer is retained there may be a conflict of interest.

Impacts of Marriage Not Realized Until Later in Life

            Many couples are surprised to find out that Medicaid in Virginia does not recognize prenuptial agreements, which means that if one spouse enters a nursing home then all the assets of the couple are considered on the Medicaid application, which can impact eligibility. Other government benefits, employment benefits, and pension plans can also be affected by a marriage.

Who Should Be Your Fiduciary

            Often times adult children will have bias towards their biological parent as well as themselves over a step-parent, so assigning adult children as fiduciaries (power of attorney or executor) can set up the step-parent to be left in the cold. Best practice suggests that those making estate plans, especially those in a second marriage, assign professionals to serve as their fiduciaries, that way bias should be taken out of the equation.

Trusts Over Wills

            Another great idea when entering into a second marriage is to set up trusts for any children the spouses bring to the marriage, that way when one of the spouses dies first there will be no chance for the surviving spouse to disinherit his or her step-children.                        

Gray Marriage Does Not Have to Cause Issues

             When a marriage is new it is so easy to think nothing will go wrong, but it is important to plan for the worst and hope for the best. The attorneys at Smith Strong will be able to create a comprehensive plan for your future that provides for your specific family’s needs. If you are in need of a lawyer for your estate planning, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

H. Van Smith
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Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg