Love can bloom even in your golden years! Whether you’re tying the knot for the first time or giving it a second (or third) go-round, below are some long-term care and estate planning issues to consider when marrying later in life.
Long-Term Care
It may come as a surprise that the resources of both spouses are counted when determining one’s financial eligibility for Medicaid: Either the couple’s combined liquid non-retirement assets must total below Medicaid’s financial eligibility threshold ($32,396 for 2025) or the ill spouse’s assets must total below this amount while the well spouse executes a Spousal Refusal (SR). The SR allows Medicaid to consider only the ill spouse’s resources when determining eligibility, however, Medicaid may later seek to recoup funds expended on the cost of the ill spouse’s care from the refusing spouse. While a pre- or post-nuptial agreement does not eliminate spousal responsibility in New York (NY), post-eligibility planning for the refusing spouse could be beneficial.
Laws of Intestacy
When you die with assets in your name alone without a Last Will and Testament (LWT) your assets pass according to NY’s laws of intestacy—if you are survived by a spouse and children, your spouse will receive the first $50K and 1/2 the balance, and your children will receive the remaining 1/2. A LWT and/or Trust are better planning devices if this default scheme does not reflect your wishes.
Right of Election
You may have a LWT in place prior to your marriage, but you cannot disinherit your spouse once you’ve wed. NY grants the spouse a right of election (ROE) to receive the greater of $50K or 1/3 of the deceased spouse’s estate. If you want to circumvent the ROE, a pre-nuptial agreement, waiver of ROE, or transfer of assets to an Irrevocable Trust should be considered.
Marital Trusts & Life Estates
Want to bequeath your assets to your kids without leaving your new bride out on the street? Creating a marital trust for a surviving spouse is an excellent way to ensure your spouse is provided for (with the spouse to receive income but not principal from the trust), while any remaining funds will be distributed to your children.
Alternatively, you can provide an outright bequest of the house to your spouse or give them the right to reside for a term of years (or for life). You will need to consider who is responsible for paying expenses related to the property during this time period, the implications of a bequest to your spouse if they need long-term care, and the possibility that your spouse could remarry following your death. A life insurance trust is also a good planning option.
This list is by no means exhaustive, and the decision to marry later in life is one that should not be taken lightly. By consulting with an elder law attorney, you can ensure these issues are thoroughly addressed within your estate plan in advance, so that you can fully celebrate on your big day.
