Graying Marriage and Divorce – Your Duty to Provide Care

By Deirdre R. Wheatley-Liss, LL.M, CELA

In a previous post in this series, I said an individual, legally, cannot leave their spouse disinherited (except with the spouse’s uncoerced consent). In addition, a spouse has a duty to provide care and to pay for that care.

If you are married to someone and that person becomes ill – and even if you have the world's most robust and thorough prenuptial agreement, and you have kept your premarital assets separate from your marital assets – in New Jersey, you have an obligation to support your spouse. This obligation includes paying for any health care or long-term care that they may need.

Long-term care is incredibly expensive. If your spouse needs to enter a nursing home, you're looking at around ,000 a month. And no matter what your prenuptial agreement says, and no matter what separate assets you have, the State of New Jersey requires that your assets be spent down to a certain amount of money before your spouse is eligible for government benefits.

Example: Two people have a prenuptial agreement. Coming into the marriage, the wife had an IRA of significant value and the prenuptial agreement specified that the IRA would be exclusively hers in the event of a divorce. However, her current husband is elderly and gets sick. He goes into a long-term care facility. Medicaid now requires that asset to be spent down before they will provide assistance for his long-term care.

Tip: Long-term care insurance can protect you from needing to spend down all your assets in order to qualify for Medicaid.

When I counsel individuals who, later in life, are planning to get married, I discuss with them the idea of obtaining long-term care insurance on each other as a way of offsetting the costs of long-term care during the marriage. I recommend that they purchase insurance so that in the event one of them becomes sick, the assets of the other (assuming that they never intended that each other's assets were going to be commingled) need not be used to pay for care. It assures that the assets of the other spouse are protected because the insurance is a source of money to pay for the care.

This post is for general informational purposes only. The specifics of your situation could affect the applicability of the information provided in this blog post. For a video presentation of this information, please visit Graying Marriage and Divorce, here. For more detailed information, please visit www.porzioplanning.com or contact us for a free 20 minute telephone consultation.