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Legal considerations change in a second marriage

Q. I am considering a second marriage to a person whose spouse also has died. We are in our early 70s. Are there any special legal matters I should consider before a second marriage?

A. Since you and your intended spouse probably have children from your first marriages and have no doubt each accumulated assets, you will need to consider the rights and obligations of marriage differently than you did when you were first married at a younger age.

This second marriage may also make you financially responsible for your spouse's medical expenses. Since the cost of medical and long-term nursing care for an older person can be considerable, it is important to confirm that the person you want to marry has set aside a sufficient reserve of money to pay for the medical and nursing expenses that will not be paid by Medicare.

In the alternative, you should confirm that your intended spouse has and intends to keep in force during the marriage a supplemental health insurance policy as well as a long-term nursing care policy.

It is also important to remember that your new spouse will have the priority to make your medical decisions if you are not capable of making health-care decisions for yourself unless you designate a person to be your health-care surrogate. Accordingly, you and your intended spouse should sign health-care advance directives and pre-need guardian statements that confirm the person you each want to make your medical decisions and to manage your assets if you are unable.

Q. What other matters should I consider before a second marriage?

A. You should determine if any retirement benefits you are receiving as a result of the death of your first spouse will terminate in the event of remarriage. Likewise, a person drawing on his or her ex-spouse's Social Security benefit may forfeit that right on remarriage.

It is also important to understand before you marry the income tax ramifications surrounding the sale of either of your residences. The Internal Revenue Code permits a person to defer the recognition of the gain on the sale of a principal residence if another principal residence is purchased within two years before or after the date of the sale and the cost of this new residence is equal or greater than the cost of the residence that is sold.

If both you and the person you intend to marry own a residence and move into one of the homes after marriage, the person who owns the other home will lose the benefit of this rollover provision upon the sale of his or her home unless each spouse subsequently maintains and physically occupies a separate residence. Consideration should be given to selling both homes before the marriage and then investing the proceeds in a more expensive home to allow each the benefit of the rollover provisions.

You also need to remember that the favorable one-time exclusion for a person who is 55 or older of up to $125,000 of gain on the sale of a personal residence is not allowed if you marry a person who already has used the one-time exclusion or uses the one-time exclusion during the marriage. If you and your intended each own a residence and intend to use the one-time exclusion, you may each want to consider selling your homes before the marriage.

Likewise, if the person you intend to marry already has used this one-time exclusion, you should consider the sale of your home before the marriage.

The advice of a certified public accountant or a tax attorney should be obtained before the marriage and before any decision is made with regard to the sale of your residence.

Q. I have heard that a prenuptial agreement should be signed before we marry. What is this agreement, and what does it accomplish?

A. A divorce in a second marriage where the health of one of the spouses has declined can result in the other spouse being responsible, after the second marriage has ended, for continuing support of the other spouse through temporary alimony, permanent alimony or rehabilitative alimony. The parties can sign a prenuptial agreement before the marriage in which they waive any claim for support in the event of a divorce.

A prenuptial agreement is also signed by the parties before the marriage to avoid the need for a judge to decide how the couple's assets will be distributed in the event of a subsequent divorce.

A prenuptial agreement also is necessary in order for the parties to waive their right to receive a portion of the other's estate in the event of death. Without a prenuptial agreement, the new spouse is entitled to claim at least the elective share, which is 30 percent of the property of the deceased spouse that is subject to probate administration except real property not located in Florida. In addition, the surviving spouse would be entitled to a life estate in the deceased spouse's homestead, $10,000 of household furniture and all automobiles used personally by the deceased spouse (regardless of value).

A postnuptial agreement can be signed by spouses after the marriage to waive some or all marital rights. The parties should each seek the advice of an attorney before signing a prenuptial or postnuptial agreement.

Gregory G. Gay is a lawyer in Pasco County who specializes in elder law. You can write to him c/o Seniority, the Times, P.O. Box 1121, St. Petersburg, FL 33731.