Dear Mr. Premack: I have a conundrum. I am 66 and would love to marry the woman with whom I am in love. We’ve been together for six years. She’s the light of my life, eight years younger, an independent business woman and she makes me very happy. I have no children and she has two married adult children. The only reasons I hesitate are legal, some based on the impacts that federal law would have on my benefits. For instance: 1) I am a military retiree with a Survivor Benefit Plan that will pay 55% of my retirement pay to my new wife. Premium payments and coverage start after one year of marriage. This encourages me to wait to marry her until one year and one day before I die, but of course that is impossible to predict. 2) I can delay receiving my Social Security benefit till age 70 and she can draw concurrently at 62 with the larger widow’s benefit. This encourages me to wait to marry her until just before my death. 3) If we marry now, income taxes would increase for both of us. This encourages us to stay un-married. 4) If we file our taxes jointly, I’ve accepted a legal liability that may not be controllable if she has troubles with the IRS. The incentive is to stay single and file individually. 5) If we marry and she ever wants a divorce, my entire existence as a human being will be subject to an ill-prepared Texas judge’s whim. My assets and emotional well-being would be placed in jeopardy. That fear pushes me to stay single. So, should I marry? If so, when? – EHB
I can’t answer those questions! You have to weigh the pros and cons to make the decision for yourself! In reality, the question is “does the legal and interpersonal situation demand marriage, or can the two of us remain happy and together without marriage?” So far, your analysis of the legal and financial impact leads to the conclusion that you should stay single or delay getting married.
The only contrary argument is interpersonal. You are in love (and hopefully she is, too). Do all of the logical and legal arguments for delay offend you or your beloved? Is she pushing to get married, or is she happy with the status quo? If she wants to marry now, would she consider a prenuptial agreement to address at least some of the issues that you raise?
A prenuptial agreement, made pursuant to the provisions in the Texas Family Code, would help you deal with divorce if either of you later decide this marriage was a mistake. The agreement should address several categories of issues: 1) What happens while you are married regarding sharing of living expenses, home maintenance, vacations, medical costs and even nursing home expenses when those days arrive; 2) What happens while you are married regarding, creation of community property, maintenance of separate property, and the growth and earnings from your separate property; 3) What happens if you divorce regarding support, division of assets and division of debts; 4) What happens if either of you dies while married regarding division of your estates, occupancy of your homestead, claims by your families, and ongoing support of the survivor; and 5) For younger couples with minor children from prior marriages, what support obligations exist or are avoided?
If you make a prenuptial agreement, you must do so with full disclosure of all your financial secrets. She must know about your assets and your debts, and you must know about hers. You should both be represented by legal counsel, and the agreement must be made voluntarily. If there is a divorce, the issues that would otherwise be presented to a Judge will already be settled. (By the way, the Judges who hear family law cases are very well prepared, and have a very difficult job. Would you want to sit all day long listening to estranged spouses argue over who gets the living room furniture or who gets custody of the cat?)
Frankly, as an Elder Law Attorney, my experience with the aftermath of second marriages has been negative. Almost universally and with rare exception, the marriages are happy for a few years and then become unsuccessful. Because most couples refuse to make a prenuptial agreement or ignore the issues, family members clash, there are arguments over responsibility for medical bills and generally the arrangement is not what was anticipated. When the spouse from your second marriage dies, there are frequently arguments over the homestead and division of assets. In my opinion, if you decide to marry again, you must first work out a prenuptial agreement. Doing so will be greatly beneficial to all the affected parties.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, February 27, 2012