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Re-Marry or Cohabitate? Issues to Address

Question: I am 52 and the woman with whom I have been living for the past four years is 47. Each of us has been married before, and each of us has two grown children from our prior marriages. We have been talking about getting married, but we are both concerned about making sure we treat each other and our children from prior marriages fairly. For example, neither of us wants to die and see our children get cut out of our estates, but we still want to make sure we protect each other. In addition, we have read in your column that premarital agreements will not cancel out our responsibility to each other for long-term care in a nursing home should that contingency arise.

Each of us works for the government. I have six years until retirement, and she has eight. We each have pensions, IRAís, 457 plans, and some insurance. Will we be better off staying single or marrying? And if we marry, how can we solve what we consider to be difficult problems?

Answer: The make-up of the American household today is, to say the least, quite varied. In fact, less than ten percent of American households are made up of a working husband and a wife who stays at home to raise the children. Once upon a time, this grouping made up more than half of all households. No more Ozzie and Harriett, weíre afraid.

Today, a large number of unmarried cohabitants are over 40, have been divorced or widowed, and canít decide whether to marry again or not. While marriage brings with it such economic plusses as Social Security Survivorís Benefits and the marital deduction for those who may have taxable estates, there are also economic such downsides as responsibility for each otherís necessaries and health care and mandates to provide a fixed percentage of oneís estate to a spouse. Whether you marry again or not, planning is essential in a number of areas.

IF YOU DO NOT MARRY: If you do not sign health care powers of attorney, should either of you become incapacitated, your health care decisions will be made by family members, not your live-in partner. In fact, your live-in partner may not even have the right to see you in the hospital without family permission. If you do not sign durable powers of attorney authorizing your live-in partner to make financial decisions for you that comport with your testamentary intent, should you become incapacitated, you can bet there will be a race to the courthouse to have a judge decide who will handle your finances. Without written documents that comply with the law of the state where you live, family members have priority in both the health care and financial areas. You can pass your estate as you wish through your will, through appropriate titling of assets, and through beneficiary designations on life insurance, IRAís, and qualified retirement plans. But a word of advice: Some 401(k) plans restrict payment of employer contributions to family members. You and your partner can sign an appropriately prepared cohabitation agreement that covers many of these areas. Each of you should maintain separate health insurance.

IF YOU MARRY: Through an appropriately prepared premarital agreement, you can decide how your estates will be divided. In order to change the beneficiary of a qualified retirement plan from your spouse to another, you will need to have a waiver by your spouse which should be signed after the marriage. You should still have durable powers of attorney and health care powers of attorney to assure that your intentions are carried out should you become incapacitated. To avoid the responsibility of paying for each otherís nursing home bills, purchase long-term care insurance, which, at your ages, should be affordable. Think about providing for your spouse or children through life insurance if that is your choice. Make sure you understand the effect of titling property in joint names as this can cause a distortion of what you really want to happen at your death.

SoloFact: Planning for second marriage or cohabitation adds complexity an already challenging process. Contact a qualified lawyer in your community to find out your rights and responsibilities before you make a final decision.

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