Dear Rajiv: My 88-year-old mother is about to marry a 90-year-old widower. His sons have talked him into putting all his assets into a trust. The sons are the trustee; their father is the beneficiary. Could this cause problems for Mom in the future?
Late-life marriage can create a variety of issues. One question always looms large: Is the marriage happening because one spouse wants access to the assets of the other?
Adult children share these concerns, and that’s what you’re confronting here. Though the sons’ stated goal may be to protect their father from the possibility of a predatory spouse, there may be a hidden agenda. They may be more interested in protecting their inheritance. That would explain the creation of the trust. Transferring assets to other family members is one way to protect assets from a new spouse.
Though there is no universally accepted right solution to the problem of protecting assets in a late-in-life marriage, there is, in my opinion, a universally accepted WRONG solution, and that’s to do what the widower’s sons have done. Pretending to have the parent’s best interest at heart, they talk the parent into giving up all control over all the assets.
This puts your mother in a terrible position. Not only will your mother be marrying a pauper, she will also be forced to deal with her husband’s hostile children. If her husband gets sick, which is likely given his advanced age, your mother will be left holding the bag for her spouse’s uncovered medical and long- term care costs.
What could the widower have done differently? The best planning honors the promises a surviving spouse made to a deceased spouse even if a new spouse enters the mix. The widower could have transferred half of his assets to a Safe Harbor Trust that states that the assets are available for the supplemental needs of the surviving spouse (your mother), and upon her death, the assets go to his children. With the right planning, it is possible to recognize the obligations to the new spouse and provide for the needs of the new spouse with appropriate protections in place.
Encourage your mother to consult with an elder law attorney before she walks down the aisle. It’s important that she have a plan to manage the risks of marriage to a man whose assets are under the control of others, and whose long-term care she may have to underwrite.
Rajiv Nagaich is an elder law attorney, author, adjunct law school professor, and retirement planning visionary who has achieved national recognition for his cutting-edge work with retirees and his contributions to the practice of elder law. Call 877-762-4464 or email firstname.lastname@example.org.