Remarriage: What You Should Know – Interview Transcript

| May 8, 2014 | 0 Comments | Email This Post Email This Post

Transcript from BloomerBoomer interview with Debra Speyer

Andy Asher: So for whatever reason, you’re single again or perhaps even living alone. Let’s speculate a little further and say, you’re wondering maybe about living with someone or marrying again someone you’ve met. Now you must make some real decisions – if you live together, are your friends and family comfortable with that? Also, living together or marrying, well there are legal considerations there. So we decided to talk with attorney and professor Debra Speyer, who wrote “Among Other Things, 6 Things To Consider When Marrying or Remarrying Later In Life”. She has a long list of accomplishments ranging from “Best Lawyer”, “5 Women on the Move”, and quoted in hundreds of publications. And she brings both the moral question and the legal question into the equation as we pick up our conversation.

Debra Speyer: To tell you, some couples living together is just unthinkable. For religious reasons, for family reasons, it’s unthinkable. For other couples, they may have lived together with somebody when they were 18. I think Woodstock was on the late 60’s so “Flower Power”, “Love Power”, people had a different attitude at one point in time, so when I’m dealing with somebody that may be on their 70s or 80s or 90s, they may have a different thoughts in terms of living together that somebody that’s 55, the 65. Oftentimes, it depends on who the couple is depends on their religious upbringing since some religions, it’s taboo to live together, so I’m not there to put a moral spin on anything – it’s just a matter of evaluating things and letting people understand what they need to know. I mean, it’s funny, I have children of the parents coming to me saying that, “mom is 95 years old, she just met a guy at the nursing home, they wanna live together, this is terrible, what do we do?” It’s interesting to watch the whole family dynamic.

Andy: Yeah that must be and I was gonna ask you that because the children of… who maybe from that very era of flower power who see cohabitation as something a little bit normal. They can’t envision their parents for some reason having that kind of a relationship.

Debra: And the parents are. I mean, people living together is a very large segment now especially in nursing (homes). It’s interesting in nursing homes, sexually transmitted diseases are a big issue now because so many people are hooking up with each other. So it means there are a lot of interesting things going on out there now. Just so you know, it’s a new world, people have just to move on with the times.

Andy: So let’s pick it up from there: a couple, for whatever reason, they decide they want to live together or maybe get married, and the couple needs to look into more than just moving in together and sharing expenses, don’t they? After that, where do you go?

Debra: They have to look at their overall plan. They have to review any kind of trust, any kind of will, power of attorney, advanced living instructions, etc. It’s important because if you were, if you decided to get married, you wanna make sure that it’s important to you that the children from the first marriage are covered in terms of inheritance as that’s something important to the person. A lot of people don’t realize, but even if a marriage is a couple of weeks and then they get the divorce when there’s a problem, the spouse maybe entitled to money all of the money if the person dies, you know at some states, they don’t have the assets and frozen assets can go to the remaining spouse. So people really have to focus on what they want their finances to look like, taking in consideration multi-generational family dynamics. It might be that they want to make sure that money is left for grandchildren for their further education and they are anticipating that this will happen. But if you don’t have a will that sets that out, then the state’s gonna dictate how your money is distributed, and that’s something that most people don’t want. It might be the same thing, for example, with the power of attorney, but the power of attorney doesn’t allow somebody to act in somebody else’s place. It allows somebody to write checks, it allows somebody to make financial decisions, the healthcare power of attorney allow somebody to make healthcare decisions. So you have to think in terms of who do you want making those decisions? Some people, if they are living together, they may want that friend to take care of that person, but if it’s not set out in writing someplace, that person has no right.

Andy: So Debra, let’s take another “what-if” example and talk about that. Let’s say a couple, they wanna stay together and they wanna live together. So they want to decide now, should they just remain living together or should they get remarried? So how do you look at that from a legal standpoint?

Debra: You have to analyze your particular situation. For example, there may be a pension that has to be analyzed – social security, medical insurance benefits, pension, military benefits. I mean, you have to analyze the entire picture in each individual person may have a different dynamic to consider. Like social security, it depends how long the prior marriage was, depends on a lot of dynamics. So what you want to do is to make that kind of decision, let’s say you gotten over the morality – it’s not an issue, you don’t mind living together, you don’t mind getting married either. You have to look at each individual picture of your lifestyle to figure out where that’s gonna fit in. So what somebody should do if you’re contemplating getting married, you should really look at the pension that you may be receiving if you are from your spouse. If, for example, your spouse is deceased or there was some kind of QDRO, meaning you had a divorce first now you’re entitled to some part of a pension, you have to look and analyze that. You have to go sit down with the social security office and figure out, based on your individual circumstances, what happens if you were remarried? Normally, you’d lose the, you know, they get it, it’s individual, it depends on how long the marriage took place, etc. But, you may end up only getting your new spouse’s social security if that spouse died. You need to look at medical benefits, how is that gonna affect you. Your medical benefits may be from your spouse’s former job, so you have to see how they handle that. You have to look in terms of the CA. And a lot of these issues is dictated by whether there was a divorce or whether the first spouse they died in determining what’s happening with the second spouse so these are a lot of issues you have to really consider. Another big issue that people don’t even realize is that when it comes to Medicate – Medicate is a system that the government has in place for people that cannot afford certain medical benefits and particularly for nursing homes. So when it comes to nursing homes, the average nursing home across the country is $10,000 / month, most people can’t afford that. So what ends up happening is Medicate will pick up part of the tab. That’s true for most federal government and state governments. What people don’t realize is, if somebody gets remarried, I’m gonna give you an example with this, I had this happen with one of my clients, the woman was worth a million plus dollars. She ends up deciding to get married to somebody that was only worth about a hundred thousand. He had given away some of his money to his child. He ends up going to a nursing home. Now she had what she thought was a bulletproof prenup. Prenup said that if he ever had medical issues, that if he has to go to a nursing home, she’s not responsible for them, and he agreed to that. What ends up happening is that he has to go to a nursing home and the nursing home, and the public welfare, looked at her resources in determining how much money was available to pay his nursing home care. Now, she didn’t realize that because she thought that as long as she had prenup, she was covered. But the United States government and her states government doesn’t have a signature on that prenup, they said, “look, you may have a prenup but that’s not our problem, you’re married, you have a spouse and you are responsible for making sure that that nursing home is paid.” So these are very big things to consider, Andy. People don’t realize always the implications of, you know, if they get married and what that entails in terms of finances and responsibilities to the other spouse.

Andy: So those prenups are not bulletproof, are they?

Debra: They are not bulletproof, but a lot of people think they are. But what they are good for is if you want somebody to get only a certain amount of money if there’s a divorce, that’s what it’s good for, or there’s a death of one of the spouses and you wanna make sure that that spouse won’t claim what they call a “spousal election”. Spousal election is in some states a spouse that was written out of a will can go in and ask for a certain amount of money. Every state is different, but let’s say for example with the third of the assets, the probate assets. So it could end up being that the spouse wrote a will that cut the other spouse at. That spouse that’s now remaining can go into court and ask for the spousal election. So that’s very important because, again, it might be that you wanna make the person wants to make sure that it’s their children from their first marriage that gets the bulk of the money and not the second spouse. And I’m not, it’s not for me to decide what makes a judgment is to whether that’s good, bad, or different, it’s just whenever somebody wants, the goal is to make sure that there is written, executed, signed paperwork that makes sure that whatever they want is done according to what their wishes were.

Andy: Now of course Debra in a large part, we’re talking about “baby boomers” here, that was the time of the free love movement, Beatlemania, Woodstock, transistor radios, and the Motown sound.

Debra: Well oftentimes, people nowadays, but mind you, Woodstock, people have used to live in together already, most people that I’m dealing with nowadays don’t wanna get remarried. What they wanna do instead is to wanna make sure that the other person is committed to them and they might have a commitment ceremony in which they’re reading poetry, they might read biblical passages, they’ll have family from both sides together as if they are having a wedding. They’ll bring the caterer and they’ll do everything that one would normally do except that you’re not gonna have the rabbi, the priest, the minister, or the judge there to consummate the actual marriage. But, I’m finding a lot of couples are doing that nowadays. They might still wanna deal with making sure that one of the couple is protected in the case that there’s a death, so they might have set it up for this joint account, they may have setup their wills so that that loved one, even though they’re not married, is getting money if something, God forbid, happens to the first spouse.

Andy: Let’s say, Debra, for example, two people are discussing amongst themselves about what they should do when they live together and cohabitate and they’re discussing whether or not they should just leave it as two people living together or should they tie the knot legally and go to marriage? Is there one advantage over the other from a legal standpoint?

Debra: It’s very state-specific, so I don’t want to give general advice. What you need to do is you really need to sit down with somebody a lawyer, a divorce lawyer, a family lawyer – and figure out in your state if there’s something specific and sometimes you have a common law marriage, which either way if you’re living a certain amount at some states, you might be recognized as being married. So if you wanna make sure that if you don’t want to be recognized as married, you do whatever is necessary to make sure you’re not and that might be now that you’re keeping assets separate, etc. I’m not familiar with the California law that you have mentioned, but you wanna make sure that in your state, you’re dotting all the ‘I’s and you’re crossing all the ’T’s so that you’re not recognized as married because you don’t want to end up having some of the financial burdens perhaps that could go along with being married and remarriage situation which as I’ve said before, Medicate, etc. So it’s basically very important to make sure that you really sat down and you figured out what are your assets, what are your liabilities, what are the plus, what are the negatives to figure out whether it makes sense to get married, etc.

Andy: Certainly. Now, we talk all these about prenups and should people still have them at this stage of the game?

Debra: I think that everyone should have a prenup just as I’ve explained before. At some extent, you wanna make sure that if you’re gonna get remarried, everyone understands what assets you’re entitled to. You don’t want any surprises down the road, cause you don’t want a situation in which there’s a divorce and now people are fighting over what wasn’t put up in the prenup. People at this age are coming in with their assets. It’s not as if they’re 25 years old and they have another 20, 30, or 40 years of working. When you’re coming in at 65, 75, 85, or even 95, you’re not able to handle your money anymore, so you wanna make sure that you don’t have any missteps and you’re losing part of your assets. I see people even at 90 years old wanting to get divorce nowadays, so it’s not uncommon to see older divorces. It used to be people, when they were older, wanted to stay together, but sometimes, people reach the point when they say, “I can’t take care of this person”, “I’ve devoted 50 years, I’m out!” or the spouse, at 70, might have met somebody else, I mean, there is a lot of dynamics going on and you just have to make sure that you cover your bases.

Andy: Well I can see Debra why you, as the attorney, get paid the big bucks for what you do because it is really complicated. Any final tips you can share with us?

Debra: My tips would be you wanna make sure that you have all your state planning documents in place. You wanna make sure that you have a will, you wanna make sure that you have a power attorney, a healthcare power attorney, financial power attorney, you wanna make sure that you have advance healthcare directive. And you want to decide who you want that age under the power of attorney to be, because it might be that rather than if you have the second husband or second wife that you’d rather have your children be making the financial decisions for you. So it’s important to almost sit down with your family and sort these out because you don’t want any hard feelings from the person you’re gonna be living with or the person you’re gonna be marrying either, so you really need to almost bring in the children from both sides and everyone’s sort of understanding what the dynamics are here. So again, you wanna have the state planning documents in place and you wanna sit and contact the social security office – sit down with somebody from the social security office and figure out what will happen as a result of a remarriage? What benefits might you lose? What benefits might you gain? If the spouse on the second marriage is earning a lot more money than the first spouse did and you might end up getting the benefits of that person died, so you really wanna sit down with the social security office. You wanna sit down if there was any veteran’s benefits, you want to sit down and figure out from the VA what happens if there’s a remarriage? You want to sit down with the pension department of your first spouse’s job to see what are you losing, what are you gaining if there’s a remarriage. Basically, sit down and figure out if one spouse has a lot more money and if there’s a Medicate situation, are they ready to accept that? You have to think in terms of what happens with a second marriage, let’s say, one of the spouses has to into assisted living. You might be very healthy, do you want or are you ready to accept that you might end up having to jump into assisted living arrangement at a some type of continuing care community? Are you ready for that, cause that person may be older, may be sicklier, is that something in the next years you want or do you want a situation in which you’re just dating, steady dating, and if something, God forbid, happens to that other person, you don’t have any obligations there. So, I mean, there are lot of things to think about, so those would be my tips and terms of what you should be thinking about. And of course lastly, you make sure you have a good prenup in place if you are gonna get remarried that sets out very specifically what happens.

Andy: And if anybody wants to get a hold of you or has a question?

Debra: I practice at a number of states, but if anybody actually has a question they need a quick answer to, I’m happy to answer it or get them to the right people. My email is [email protected]. So if somebody has a question, I’m happy to answer it by email.

Andy: Well this has just been great information and I very much appreciate your time.

Debra: Thanks for having me Andy.

Category: Relationships

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