If you’re getting married later in life, there are many good reasons to sign a premarital agreement. The older you are when you get married, whether it’s a first or a subsequent marriage, the more likely you are to have accumulated assets that you want to protect in the event that the marriage doesn’t last. Many seniors who remarry in their golden years after a long first marriage want to ensure that their children inherit the bulk of their estate, rather than the new spouse, and a prenuptial agreement can help accomplish that goal.
If the new spouse needs nursing home care, however, the prenuptial or postnuptial agreement may not provide as much protection as you’d think. If the spouse in skilled nursing care does not have long-term care insurance or sufficient funds to pay for his or her care, he or she may need to apply for Medicaid. Medicaid (which pays for nursing home care) and Special Assistance (which pays for assisted living care in North Carolina) do not honor prenuptial agreements. When a person applies for Medicaid, the caseworker looks at all of the assets in both spouses’ names when determining whether the spouse in the nursing home is eligible for Medicaid. It doesn’t matter if the couple signed a pre- or post-nuptial agreement stating that all of their assets are separate – Medicaid considers any assets in the other spouse’s name available to pay for the sick spouse’s care. If the sick spouse has limited funds but has a healthy spouse with assets, this Medicaid policy can make it difficult for the sick spouse to qualify for Medicaid and puts the healthy spouse in a difficult position. Thankfully the Medicaid laws have some built-in protections for spouses, and if the spouse still living at home is cooperative, it’s possible to use various methods to protect the assets of the healthy spouse while enabling the sick spouse to qualify for Medicaid. An Elder Law Attorney can help the spouses navigate this situation.
If you’re considering getting married later in life, it’s wise to consult a Family Law Attorney to discuss a premarital agreement and an Elder Law Attorney to discuss ways to protect your individual assets in the event your new house requires long-term care.
The attorneys at Allen & Spence have been practicing Family Law, Elder Law and Estate Planning in Raleigh, North Carolina for thirty years. Contact Scott Allen and Amanda Spence at 919-863-4183 if you need help with a prenuptial agreement for a second marriage or nursing home care for a second spouse.