Advance Planning in Second Marriages

August 30, 2004

Second marriages, particularly those later in life, can pose issues and challenges which require careful consideration. Prenuptial Agreement – a written agreement or contract drafted by lawyers and signed by the prospective husband and wife before the marriage – are designed to cover each spouse’s rights in the event of divorce and upon death. Typically, the Prenuptial Agreement will cover a couple’s individual property brought to the marriage, what is to be done with future-acquired property, and support of a surviving spouse. Prenuptial Agreements have expanded to cover the rights and obligations of the husband and wife during the marriage, as well. Even with these agreements, under New York law each spouse has a duty to support the other during marriage and possibly after divorce.

The importance of property rights notwithstanding illness and incapacity, although not just the province of second marriages, pose difficult issues for second marriage couples and their families. Who will care for the sick spouse? Who will be responsible for arranging for care and making decisions about that care? Who will pay for the care – whether at home or in a nursing home? And, if necessary, will Medicaid be available to pay for care?

Prenuptial Agreements can and should address many of these issues. If either spouse could remain at home with home care services, the agreements should have payment plans for care and other possible extraordinary medical expenses. Medicaid planning with respt to resources should also have been considered. Will one spouse be allowed to “gift” assets to adult children leaving the other spouse’s assets exposed to Medicaid recovery or subject to spend down if either should require long term care? Has the prenuptial agreement provided for payment for supplemental Medicare policies and/or long term care insurance?

The issue of who will make actual health care decisions for an ill spouse must be addressed outside the prenuptial agreement in a Health Care Proxy and Living Will. Careful consideration in selecting the agent and alternate agent is essential. should the spouse be the agent or adult children from the prior marriage? If adult children, will the agent be accessible in the event of a medical emergency?

The facts of each case will differ as will the needs of the couple entering into a second marriage. Management of and payment for health care in a second marriage should not be overlooked in Prenuptial Agreements.