Planning for Life

Prenuptial Agreements and Medicaid - Massachusetts

Posted by Harry S. Margolis on October 27, 2012

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By Harry S. Margolis

For a long list of reaons, we recommend to all seniors contemplating marriage to enter into a prenuptial agreement. Such agreements don't just govern what would happen to their property and income in the event of divorce, but also who is responsible for various living expenses, including maintenance of insurance, as well as what will happen to each spouse's property upon their death.

While men and women getting married at a younger age often have little or no assets to begin with and create an estate and family together, older newlyweds are more likely bring with them both children and property accumulated over a lifetime of work -- often with a predeceased spouse. Without planning, assets can easily end up paying for a new spouse's long-term care or pass to the family of the surviving spouse, rather than to the children and grandchildren of the first spouse to pass away.

A prenuptial agreement can help protect against these unintended outcomes, setting out expectations as to who will pay for what, whether either or both spouses will maintain long-term care insurance, and what will happen to property upon the death of each spouse. While not very romantic, the discussion of these issues prior to marriage can be crucial in making sure that the marriage and the merging of two families goes well.

Further, a prenuptial agreement can help protect a healthy spouse from losing her life's savings paying for the care of an unhealthy spouse.  Medicaid (MassHealth in Massachusetts) will pay for nursing home care of the ill spouse based on his assets alone through the "just say no" or "spousal refusal" strategy.  But the state then has the right to sue the healthy spouse for spousal support. A prenuptial agreement can be a powerful defense against such a claim.

So, if this is your second marriage or your fiance's, stop by your lawyer's office on the way to the altar to make sure reality doesn't get in the way of marital bliss.

Topics: long-term care planning, MassHealth, Estate Planning, second marriage

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