Geriatric Marriages

Geriatric Marriages
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According to the New York State Department of Health, there were a total of 139,687 marriages in New York State in 2014. More than half (78,409) of these marriages took place in New York City, and 61,278 took place in the rest of the state. (June weddings did not carry the day, at least in 2014: across the state, August was the most popular month for marriage). According to the United States Census Bureau in 2015, the median age of first marriage for women is 27, and for men, 29. Even in New York, the oldest marrying state, the median age for marriage - 28.8 for women and 30.3 for men – does not differ from the national average to an extent that is starkly perceptible to the casual observer.

But what happens when New Yorkers marry at ages decades higher than the national average? So-called “geriatric marriages” can be richly satisfying, but for reasons that may differ from those that traditionally characterize the reasons that make marriages happy for younger spouses. New York lawyer Willard H. DaSilva explores the geriatric marriage in his 1995 article The Aging Family: Marital Status Issues for the Older Client, republished in the Fall/Winter 2000 edition of the New York State Bar Association Family Law Review. In this article, the author articulates concerns common to many older individuals considering marriage; explores reasons why older individuals may wish to marry (perhaps for the second, third, etc. time); and identifies problems sometimes unique to marriages in this population, as well as methods of addressing these problems. Twenty-one years later, the principles of Mr. DaSilva’s article remain true, with some updates in the law.

DaSilva avoids defining what it means to be an “older individual” for the purposes of his article, and I will follow his lead in mine. Yet he has firm ideas about what love means, in the context of marriage, to older individuals, as opposed to their younger counterparts. He opines, “The kind of ‘love’ which may exist in the hearts and minds of younger people may take a different form among the older population and play a relatively insignificant role in determining whether or not to marry. If the reasons for the marriage can be identified, then problems which may be inherent in the marriage can be recognized and addressed in order to minimize the risks of a bad marriage.” (79) According to DaSilva, then, it is the rule rather than the exception that marriage for the older individual is very much a practical undertaking.

If not of the form that “exists in minds and hearts of younger people,” in what form does love manifest between members of the older population?” In other words: why do older individuals generally marry? Interpreting DaSilva, beyond sundry reasons, there are four chief reasons: affection, caretaking, fellowship, and financial. These reasons may seem similar to the reasons any person, young or older, might chose to marry. But on closer inspection they manifest differently in different populations. For members of the older population, the need for feelings of affection may trump the need for physical attraction. The need for a caretaker may be more than a potentiality. The desire for a more expansive fellowship – the desire to avoid loneliness – may guide the actions of those considering marriage in a very real way, not just in dark moments. And it remains true in old age that it costs more for two people to live separately than to live together, a reality that may haunt older individuals whose high earning days are behind them.

If the foregoing are the reasons why older individuals might want to marry, there are several issues which they ought to consider before marriage. The mental capacity to marry can be an issue. As DaSilva states, “A marriage contracted by a person who is incompetent to marry, at least for the purposes of an annulment of the marriage, may discover that the desired marriage may no longer exist by virtue of legal action taken by the spouse, family members or other interested persons. The benefits of the marriage would end, but there may be underlying responsibilities, and economic losses.” (79)

Responsibilities – particularly financial ones – to children and stepchildren from prior marriages should be given due weight. If appropriate, prenuptial agreements and estate restructuring, both of which I touch on again later in this article, should be considered.

Not just the issue of who will assume financial burdens but the interrelated issue of the inevitability of health decline should be explored. Usually, one spouse will be financially disadvantaged compared to the other – a “burden” in that strict sense – and “the spouse with the superior economic resources will necessarily assume obligations for the care and support of the other partner. If both [spouses] are reasonably healthy, there is the obligation of support in accordance with the standard of living of the parties.” (80) But as the spouses age, medical expenses increase. As DaSilva elegantly puts it, “The body does not usually wear out all at one time.” (80)

It can be crucial to inquire about, and account for, the possible loss of Medicaid benefits and/or other government entitlements. For example, eligibility for Medicaid benefits depends on the financial circumstances of both spouses, so the spouse receiving Medicaid benefits may need to relinquish them if he marries a wealthier spouse. (80)

Armed with both reasons for marrying and concerns about doing so, the older individual would be wise to consult a lawyer. With the guidance of a lawyer, an older individual can achieve peace of mind before marriage by restructuring his estate: he can make gifts, create trusts, transfer assets, even carry out Medicaid planning. With the guidance of a lawyer, he can also prepare advanced directives such as a last will and testament. Prenuptial agreements are common for older individuals. Such agreements often contain life insurance provisions and medical and long-term care provisions. (81)

The relationships between older individuals who wish to marry may generally differ importantly from those between younger individuals who wish to marry. Their motivations for marrying, the issues they ought to consider beforehand, and the steps they ought to take beforehand to pave the road for successful marriages are distinct. Nevertheless, the love that characterizes “geriatric marriages” may often be deep and abiding.

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