Special Planning for Second Marriages

by Linda Ershow-Levenberg, Certified Elder Law Attorney (C.E.L.A.)
March 2008

When two families link arms through a second marriage there is happiness all around. If disability sets in, those unified voices often become a discord. The rights, expectations, and obligations of the healthy spouse often clash with the expectations and interests of the disabled spouse's children. What can be done to protect yourself and to make sure that your wishes will be carried out?

The Durable Power of Attorney - You can direct your Agent to preserve your estate plan absent a court order to the contrary. You can direct the Agent to keep other family members informed.

The Health Care Directive - You can direct the Agent to consult with specific people before making decisions. You can direct the Agent to keep certain people informed of your whereabouts and to not prevent visitation.

The Life Care Document - You can write out your wishes for how you want your Agent to arrange for your care, including access by children and others.

The Last Will and Testament - You can ensure that part of your estate is protected for your descendants, by creating special trusts for lifetime benefit of your spouse, or by dividing your estate between your spouse and your descendants (or others, or charities). You can keep assets in your name alone so they pass via your Will.

The Prenuptial Agreement - Before the marriage, the two of you can have your lawyers work out a Prenuptial Agreement that protects part or all of your estate for your descendants.

Beneficiary Designations - You can coordinate these with your Will so that part of your estate passes to your spouse and part to your descendants (or to others, or charities).

HIPAA Releases - You can authorize your children to have access to your protected health information.

Keep in mind that if a disabled spouse needs nursing home care, a Prenuptial Agreement or separated ownership of assets will not shield the healthy spouse from paying for care. Sometimes a divorce is warranted. In other cases, a Medicaid application will be needed. In all cases, a carefully written plan, along with good communication, should go far to ensure that your wishes are carried out.

These legal issues are but a few of the numerous issues that seniors, those with disabilities and their families may face. The law firm of Fink Rosner Ershow-Levenberg LLC can assist with the spectrum of legal issues, whether they relate to public benefits (including SSD, SSI, and Medicaid), wills, trusts, powers of attorney, guardianships or matrimonial issues, and do so with sensitivity and a sense of optimism.