Current Trends - Late-Life Marriage Meets Estate Planning- Episode 244
- Jenny Rozelle, Host of Legal Tea
- 12 minutes ago
- 8 min read
Hey there, Legal Tea Listeners – This is your host, Jenny Rozelle. Welcome back for another episode, which is a “current trends” topic where we talk about things going on currently that are relevant and pertinent to my estate and elder law world, and/or maybe things I’ve seen on the news or stumbled across on social media. Well, today we are diving into something that I am noticing is happening more and more – and that is people who are getting married and remarried later-in-life, let’s call it, 60 years old and after. I suspected it was on the rise, but after a bit of research, it was confirmed. And actually – there has been some solid research on it. According to a Yahoo article, the Pew Research Center released some interesting stats on this – They “showed that two-thirds (67%) of previously married adults between the ages of 55 and 64 had remarried. And 50% of adults ages 65 and older had remarried, compared to just 34% in 1960.” And that makes sense because while I’ve been in the estate and elder industry for about 15 years at this point, I’ve always said that a remarriage, or even just marriage (if someone hasn’t been married before), happens later-in-life way more often than people think.
So why is this happening more? A few reasons, honestly. People are living longer. They're healthier longer. They're more financially independent longer. And - let's just say it - dating has changed dramatically. You've got apps, you've got online communities, you've got more social opportunities for older adults than ever before. The stigma around dating or remarrying later in life has largely faded. And so people are finding each other - sometimes for the first time, sometimes after a divorce, sometimes after losing a spouse - and they're saying "yes" again.
But here's where my ol’ estate planning brain kicks in. Because when someone gets married later in life - especially if they've accumulated assets, have kids from a prior relationship, etc. - that marriage has some really significant legal and financial implications that a lot of people just don't think about until it's too late. And that is exactly what today's episode is about.
Let's start here - because I think it's important to understand why a later-in-life marriage is just... different from a young couple getting married in their twenties.
When two 25-year-olds get married, they're usually starting pretty much from scratch together. Maybe they have a little savings, some student loans, a used car, whatever. Usually, they are building everything jointly from the ground up. Their financial lives are fairly intertwined from the beginning. Now compare that to two people getting married at 65. They may have paid-off houses. Sizeable retirement and investment accounts. Assets they have been building for decades. Maybe they own a business. Maybe they have kids - adult kids - who likely will inherit something one day. The financial picture is just completely different. There's so much more on the table.
And here's the thing that surprises a lot of people when I tell them this - when you get married, your spouse immediately acquires certain legal rights to your assets. Not all of them, and it varies by state, but in general? A spouse has rights. They have rights to, usually, a share of your estate – in most states, it’s called an elective share. They have rights to certain property. In some states, they have rights to remain in the marital home. And those rights exist whether or not you have updated your estate plan, whether or not you have even thought about it, whether or not you intended for it to happen.
So here's the scenario I want you to sit with for a second. Let's say someone - let's call her Carol - Carol is 67, she's been widowed for five years, she has three adult kids, and she has worked hard her whole life. She meets someone, they fall in love, and they get married. She never does a Pre-Nup because, honestly, it just did not come up and it felt awkward to bring it up. She has an estate plan that leaves everything to her kids. She figures she’s fine and dandy – she thinks she’s covered. Here's the problem. That estate plan? It may not fully protect her kids the way she thinks it does. Because her new spouse has legal rights that can override or at least compete with that estate plan in ways she did not even anticipate. And if she passes away before she has updated everything - or even if she has updated everything - her spouse may still be entitled to a chunk of her estate that she never intended for him to have. Sure, ,this is a hypothetical – but it happens all the time.
Okay, so here is the core legal reality that I want everyone to hear clearly - a spouse is one of the very few people you cannot fully disinherit. And I think that shocks people when they hear it. With almost anyone else - a child, a sibling, a friend - you can choose to leave them nothing. Your estate, your choice. But a spouse? Most states have what's called that thing I said earlier, an elective share, or a spousal share, or sometimes a forced share. The name varies by state but the concept is the same - it essentially says that regardless of what your estate plan says, your surviving spouse is entitled to a portion of your estate. In a lot of states it is somewhere around one-third. Some states it is more, some less, but the point is - it exists and your estate plan cannot override it.
So if you have an estate plan that says "everything to my kids" and you're married? Your spouse can potentially step in and say "actually, I'm entitled to my share" - and legally, they may be right. An attorney would call this the spouse "electing against the will." And it happens. It absolutely happens, especially in blended family situations where there's tension between a surviving spouse and stepchildren.
Now - I am not here to be cynical about love or marriage. Not at all. Most people who get married later in life are doing so for all the right reasons and their spouse would never dream of doing something like that. But here's the thing - you don't always know how someone is going to behave when grief, money, and family conflict collide. And even if your spouse is a wonderful person with zero bad intentions, they might have their own kids, their own family members, maybe even their own attorney, whispering in their ear after you're gone. And this is EXACTLY why a Par-Marital Agreement – also known as a Pre-Nup - is such a valuable tool in a later-in-life marriage. Not because you don't trust each other. But because it gives both of you clarity, protection, and the ability to actually control what happens to your stuff.
Alright, let's talk ‘em – Pre-Nups, that is. Because I know there is a lot of baggage around this word. People hear "Pre-Nup" and they think - distrust, cold, unromantic, like you're planning for the marriage to fail before it even starts. And I really want to push back on that framing, because I think it's completely backwards. A Pre-Nup is not a plan for failure. It is a plan for clarity. It is two adults - usually adults with full financial lives, with kids, with history - sitting down and saying "okay, let's be honest with each other about what we have, what we want to protect, and what we want our future to look like." In my opinion, this is a mature, loving, respectful conversation. That is not a red flag. And honestly? In a later-in-life marriage, a Pre-Nup is one of the most loving things you can do - for your kids, for your partner, for yourself.
So what does a Pre-Nup actually do? At its core, a Pre-Nuptial agreement is a contract between two people that is signed before marriage and determines how assets and debts will be handled during the marriage and in the event of death or divorce. And in the context we are talking about today - later-in-life marriage - the big thing it does is it allows both parties to essentially opt out of some of those default spousal rights I mentioned earlier. Remember the elective share I mentioned earlier? You can, with a properly drafted Pre-Nup, have both parties waive that. So now your estate plan that leaves everything to your kids? It actually works the way you intended it to. Your spouse has already agreed, in writing, before the marriage, that they are not going to come in and claim a portion of your estate.
And it goes both ways! This is not just about one person protecting themselves. Often, both people bring something to the table. Both people have things they want to protect. A good Pre-Nup is fair to both sides. So, let me give you a few examples of what a Pre-Nup in this context might address. You might specify that each person's premarital assets - the house, the retirement accounts, the investments - stay separate property and go to whoever each person designates, whether that's kids, grandkids, etc. You might address what happens to the marital home if one person passes away - does the surviving spouse get to stay there? For how long? You might deal with income and expenses during the marriage - who pays for what, how joint expenses are handled.
The thing I want to emphasize is … these should not be awkward conversations. These are necessary ones. And a Pre-Nup is the vehicle that makes those conversations official and legally binding. (pause) Okay, so say… you're on board. You're thinking, yeah, this makes sense, I should probably look into a Pre-Nup. Here's what you need to know about actually doing it properly.
First - timing. A Pre-Nup is signed BEFORE the wedding. Not the morning of. Not the week before, ideally. You want enough time that no one can later claim they were pressured or didn't have time to review it. Second - both people need their own attorney. I can't stress this enough. One attorney should not represent both parties in a Pre-Nup. Your attorney represents you. Your future spouse needs their own attorney representing them. This protects both of you and makes the agreement much harder to challenge later. Third - full financial disclosure. Both parties need to fully disclose their assets, their debts, their financial picture. Hiding things is a problem. Fourth - make sure it's fair. Courts have more discretion than people think when it comes to Pre-Nups. A wildly one-sided agreement - one that leaves one spouse with absolutely nothing and was clearly designed to exploit someone - can be challenged.
Alright, let's land this plane, shall we? Later-in-life marriage is FINE – it’s happening more and more. But it comes with a unique set of legal and financial considerations that younger couples just don't face in the same way - and the biggest one is the simple fact that a spouse has legal rights to your estate that most people don't fully understand until it's too late. A Pre-Nup is not about distrust. It is not about being cold or calculating. It is about two adults who have built full lives, who have assets they've worked hard for, sitting down and making intentional decisions together. It is about making sure your estate actually does what you want it to do. And it is one of the most practical, protective things you can do when you're getting married later in life.
Time to wrap this episode up! Next week, we’re back to the “celebrity estate planning” type of episode – so, for this episode, I will be diving into what happened estate-wise following the recent death of Greg Biffle. Nicknamed “the Biff” – who was a racecar driver who tragically passed away in a plane crash in 2025. So yeah, that’s next week, so until then, Legal Tea Listeners, be well and talk soon!
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