Thursday, August 18, 2022
Richard L. Kaplan (Illinois; Google Scholar), Referencing NonMarriage in Later Years, 99 Washington U. L. Rev. 1957 (2021):
Many couples in later life ponder whether marriage provides more legal benefits than drawbacks, and that is the central question of this article. It considers the advantages and disadvantages that marital status conveys to older couples across different legal regimes, focusing especially on Medicaid eligibility to finance long-term care and applicable provisions pertaining to asset transfers and post-mortem recovery of benefits. But the article also considers the treatment of spouses in determining Social Security benefits, income taxation of those benefits and of residential dispositions, employment-based retirement plans, testamentary protections, surrogate decision-making, health insurance, and general indebtedness.
In this Article’s opening example, Bill and Betty are considering whether their later-in-life relationship should follow their accustomed practice to marriage. But as this Article has shown, marriage has a profound and pervasive impact on numerous U.S. legal regimes, especially those affecting Americans as they get older. In many instances, marriage is clearly preferenced by the applicable statute, but that pattern does not hold in every circumstance. Older couples like Bill and Betty must consider each of the particular legal regimes to determine whether and to what extent they apply to their specific situation. Though general prescriptions are difficult to formulate, the main point here is that older age brings several new variables into the decision-making matrix.
Without minimizing all other considerations, if either partner anticipates a need to access Medicaid benefits to finance long-term care, nonmarriage is probably the preferenced status. Indeed, the impact of this variable alone will often be so significant financially that other marriagepreferencing laws are effectively negated or rendered moot. While both partners in a marriage face serious potential exposure on this issue, older women are at especially heightened risk if they conform to general societal patterns of marrying older men and living longer than men of the same age. They may well want to follow Professor John Miller’s trenchant advice to late-in-life couples: “avoid marriage.”