The Problem of Second Marriages and Long Term Care

A very common scenario we see is what Iâll call the case of the late in life second marriage.  We all need companionship, especially after a spouse has died or after going through divorce.  Itâs lonely being alone.  So we have Joe and Mary.  They marry in their 60âs.  He has 2 children from a previous marriage and she has 3 from her first marriage.

 2 years later Joeâs health starts to deteriorate.  Itâs looking like he will need long term care.  Mary comes to see me.  âI love Joe but I am concerned for myself as wellâ, she says.  âWill his long term care needs eat up our assets?  We entered into a prenuptial agreement before we married.  I had much more financially then he did.  So please review it and tell me my assets are protected.â

I first explain to Mary that before the prenuptial agreement can protect her assets she must first get divorced.  A prenuptial agreement basically is a contract that predetermines, in the event of divorce, how assets are to be split.  In most cases the parties take back what was theirs and split what they acquired jointly during the marriage.

 Letâs go back to our couple.  Joe doesnât have much and very quickly will run out of funds and need to apply for Medicaid.  But, the only way Mary can preserve her assets is to divorce Joe and you can be sure that the State is going to look very closely at that prenuptial agreement before they approve Joe for Medicaid.

 I explain all this to Mary.  This isnât much of a choice.  She loves Joe and emotionally canât reconcile divorcing him in his time of greatest need.  âIs there any alternative?â, she asks.

 Actually, there is.  She can move her assets to a trust and after 5 years Joe can qualify for Medicaid.  In this way she can spend as much of her assets for his care as she wants but not be forced to spend it all, leaving nothing for herself to live on or to provide for her own long term care needs.

When is the ideal time to do that? Really, she should have consulted an elder law attorney before or shortly after the marriage. In her case, it still isn’t too late since it doesn’t appear that Joe is close to needing long term care yet. However, the longer she waits the smaller that window of opportunity becomes.  A little preventative medicine can go a long, long way.