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Working in elder law and estate planning, I often encounter people who are considering marriage later in life. Because these clients are nearing retirement age or past, they tend to be more circumspect about the financial consequences of marriage. Sometimes they are people contemplating a first marriage; sometimes it’s a blended family; and now, more and more people in the LGBTQ community are deciding whether to formalize long-term relationships. Getting married later in life has its benefits and its drawbacks when it comes to estate planning and long-term care planning. There are several complexities to consider that were not as critical when these clients were younger.

First, Texas is a community property state, meaning that a spouse has significant rights to property that was earned or acquired during the marriage, and what each spouse brings in to the marriage is their separate property. When one spouse dies without a will, community property rights can help simplify the wrapping up the estate when there are no children involved or if the children belong to both spouses. In addition, spouses are generally recognized as the default beneficiary of retirement benefits when no beneficiary has been named. There is no question that marriage can simplify an estate plan in some circumstances. However, for marriages later in life and for end of life and incapacity planning, marriage is no substitute for comprehensive estate planning documents.

Second, Texas law recognizes that a spouse will be the primary agent for medical decisions in the absence of a specific directive, which is crucial in health care situations. But there is no such recognition of a spouse as an agent for financial and business affairs. Absent an agency agreement, a spouse does not have a right to manage another spouse’s interest in property, be it separate property or community.

Example 1: An incapacitated spouse owns a separate property interest in family land that is shared with 3 siblings. The siblings get together and decide it’s time to sell the land. All owners must sign documents agreeing to sell. The incapacitated spouse cannot sign any documents because they are not in a position to understand what they are signing. Their spouse cannot sign the documents on their behalf because there is no agency relationship that allows the well-spouse to handle the affairs of the incapacitated spouse. Options for taking care of the property become limited and will generally involve the courts. This is an expensive and time-consuming process that could have been avoided with a simple document signed before the incapacitated spouse was incapacitated.

Example 2: The well spouse wants to sell their home to have more money to cover the enormous cost of care. Without a special direction in a power of attorney that addresses how to handle the incapacitated spouse’s community property, the well spouse may not be able to sell the house without court intervention. Again, a costly and lengthy process that can be avoided with the proper planning documents.

Additional complexities for those in the LGBTQ community in Texas include not only deciding whether to get married now but also when their marriage began. Because Texas recognizes common law marriages, same-sex couples who have been in long term relationships can formalize their union by filing a Declaration of Marriage, noting when their marriage began, which could be five years ago or twenty. It may seem intuitive to choose the date the document is signed, but the date could have an effect on the survivor benefits of a retirement plan. Formalizing the relationship has benefits and can bestow certain rights in the event one spouse is incapacitated or dies. But such formalization can also cause financial difficulties if one spouse needs long-term care.

Marrying later in life can also result in some unintentional financial burdens if either spouse needs long-term care. At this time, most people rely on government benefits to cover the majority of the costs of long-term care. Marriage has a profound effect on planning options for a couple because of federal financial eligibility requirements. The federal benefits programs generally do not recognize separate and community property; all assets are attributed to both spouses. In a situation where one partner has greater retirement assets than the other, those assets will be counted against the second partner if the second partner needs public benefits for long-term care. The well spouse will be expected to significantly deplete their retirement to care for the unwell spouse, leaving the well spouse without resources for themselves. There are some protections offered to spouses and some planning solutions that may offer some financial relief, but these may not be enough depending on each couple’s individual circumstances. Ultimately, the decision whether to marry later in life or formalize a relationship later in life is fraught with planning considerations.

It’s hard to know exactly what will be in the best interest of each couple. It will depend entirely on the circumstances. Before making any decisions, seek out the advice of an estate planning or elder law attorney that understands the complexity of planning for incapacity and long-term care.

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