Part II: Elder Law Issues Surrounding Remarriage

By Ann E. Salek, Attorney at Law
Critchfield, Critchfield & Johnston, Ltd.

A second marriage later in life can trigger several issues regarding who will receive assets upon one spouse’s death. I discussed some of those challenges in my September article, however there are other issues that arise when a spouse in a second marriage needs long-term care (nursing home/assisted living).

As people age, mental capacity may diminish due to dementia, Parkinson’s, Alzheimer’s, stroke, etc. In such a scenario, it is very helpful to appoint a power of attorney who can make health care decisions and financial decisions on your behalf. But who should you appoint to serve as your healthcare power of attorney and your financial power of attorney? Should a relatively new spouse serve in that role, or should a child from a previous marriage serve? Should the same person serve to make health care decisions as well as financial decisions? If a court guardianship needs to be implemented, issues that are even more complicated arise regarding who should be the guardian of the person and who should be the guardian of the estate. It may be very helpful to seek advice regarding typical situations that require a power of attorney. You can then make an educated decision about who to appoint.

Another issue to consider is how to pay for long term care. It is important to understand that not only does the patient become liable for the cost of long-term care, but their spouse may become liable for the cost of that spouse’s care as well. This is the case even if a pre-nuptial agreement states that each spouse will keep their assets separate. For example, in determining whether a patient qualifies for Medicaid benefits to assist in paying for long-term care, both spouses’ assets are counted. This is true regardless of whether the spouses agreed to keep assets separate or both agreed to be liable for their own cost of care. Without specific planning otherwise, assets of one spouse become susceptible to being spent for the long-term care of the other spouse.

On a more positive note, marriage to a veteran may allow the spouse of a veteran to qualify for certain benefits in the future. The widow of a veteran may qualify for benefits called Aid and Attendance, which may assist in the cost of long-term care. In such a case, the remarriage may be a significant benefit to a future widow.

While remarriage can trigger many significant issues, most can be overcome with proper planning. A second marriage can be a wonderful time in life. Spouses just need to address the potential pitfalls and make sure an appropriate plan is in place to address those pitfalls.

Ann E. Salek, Ohio State Bar Association Certified Specialist in Elder Law, and Estate Planning, Trust and Probate Law
Critchfield, Critchfield & Johnston, Ltd.
Attorneys at Law
4996 Foote Road, Medina, OH 44256
330-723-6404 •

Opinions and claims expressed above are those of the author and do not necessarily reflect those of ScripType Publishing.