Prenuptial Agreement

In elder care, you will frequently find that you are dealing with a concept known as a blended family. This means that either or the spouses may have entered into a second or third marriage. Frequently prior to taking such a big step in their lives, they will have entered into a prenuptial agreement. This document will normally cover what is to transpire if the parties divorce, die or must permanently reside in a long term care facility. As a word to the wise, a provision requiring each party to secure long term care insurance prior to the new marriage is important. It should be noted that in many states, if one of the parties enters a nursing home the other spouse’s assets will be deemed to be an eligible resource and subject to the Medicaid spend down rules. This means that a new spouse regardless of their length of marriage [one month or ten years] will be responsible for the institutional spouse’s cost of care regardless of what is stated in the language of the prenuptial agreement.

If the parties remarry, they may render themselves ineligible for the aid and attendance benefits available to the spouse of a deceased veteran. A prenuptial agreement usually makes provisions for the disposition of assets acquired prior to the marriage should one of the spouses die. It will also make provision for a surviving spouse as well and must comply with the prenuptial agreement. Otherwise the surviving spouse can have a claim against decedents estate and litigation may ensue. When dealing with an estate planning or elder care situation it is in the family’s best interest to consult with a knowledgeable estate and elder law attorney.


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