If you are getting married and have a disability or chronic illness, you might want to explore whether a special needs prenup is right for you. Getting remarried in your retirement years can be the start of an exciting new chapter, but if you or your spouse is living with a chronic illness, disability, or serious diagnosis, the process of writing a prenuptial agreement can help you get clear about your estate plan, your wishes for long-term care, and more.
According to the Pew Research Center, the rates of remarriage are increasing among people 55 and older. With more gray divorces taking place, we are also likely to see more gray marriages. In fact, two thirds of adults between the ages of 55 and 64 got remarried, and 50% of adults over 65 got remarried, according to Pew.
Yet remarriage when you are older can raise unique questions and challenges. Before you get married, you may need to address a range of concerns including estate planning, discuss who will handle making health care decisions on your behalf should you be unable to do so, and explore whether you might want to establish a special needs trust to address ongoing health and nursing needs, especially if one or both of you has been diagnosed with a chronic health condition.
We often think of things like end-of-life planning, but we don’t often think about planning for marriage. Yet, a prenuptial agreement isn’t just a document that comes into play if you get divorced—it’s an important document that can complement estate planning documents, and outline how assets, debts, and property will be distributed to your heirs should you pass away.
What is a prenuptial agreement?
A prenuptial agreement is a contract signed by two people before they get married that outlines how assets, debts, alimony, and other important financial matters will be handled if the couple gets divorced or if one spouse passes away.
Prenuptial Agreements when You Have a Special Needs Child from a Prior Marriage
If you have a child with special needs from a prior marriage, a special needs prenuptial agreement can help you get clear about how much money your child will need for ongoing care and child support (some special needs children need ongoing support even after they turn 18). A special needs prenup can also clarify how inheritance will be divided between a second spouse and your child with special needs.
In this article we’ll explore things to consider in a special needs prenup if you have a disability or chronic illness, and things you’ll want to explore with your future partner if you have a child with special needs from a prior marriage:
- Legal Tools to Consider Before You Get Married When You Have Special Needs or When a Child Has Special Needs
- The Question of Capacity
- Things to Consider in Your Prenup if You Have a Disability or Chronic Illness
- Things to Consider in Your Prenup if Your Child Has Special Needs
- Life Insurance
- Special Needs Trusts
- How Collaborative Lawyers Can Help You with Your Prenuptial Agreement
Legal Tools to Consider Before You Get Married When You Have Special Needs or When a Child Has Special Needs
A prenuptial agreement may not be the sole contractual instrument you’ll use to protect yourself if you have special needs or if you have a child with special needs from a prior marriage. In the process of writing a prenuptial agreement, you and your future partner can explore other important questions, like whether you need to establish a special needs trust for you and your children, whether you or your future partner will need to purchase life insurance policies, and more.
There are several legal tools you can use to protect yourself, your family, and your children if you have special needs or if your children have special needs. Here are some legal tools you might want to consider that we’ll explore in more depth in this article:
- Prenuptial Agreement
- Special Needs Trusts
- Advanced Health Care Directives
- Healthcare Power of Attorney
- Financial Power of Attorney
- Life Insurance Policies
If you are getting married and have a chronic illness or major diagnosis, it’s important to think about who you would want making major financial and medical decisions on your behalf. For some people, this would be their spouse, but for others this might be a child, or a trusted friend. Without a clear healthcare power of attorney or financial power of attorney, you might end up putting these responsibilities on your spouse, when he or she doesn’t want them, or when you don’t want them to have these responsibilities.
Advanced health care directives can also outline your wishes regarding end-of-life medical care so there is no confusion about what you want should you become very sick or unable to make medical decisions.
Special needs marriage, and special needs estate planning can raise a host of interdisciplinary law questions.
A family lawyer who helps clients create ironclad prenups might not be able to delve into the nuances of estate planning or special needs law. Yet, when you choose a collaborative family lawyer to help you craft a prenuptial agreement, you get to choose your collaborative team. This can include special needs attorneys, estate lawyers, and financial planners, who can help you put together a robust plan for your marriage, your estate, and your future, if you have special needs, or if you have a child with special needs.
If you have questions about how the collaborative family lawyers in Seattle, Washington at Truce Law may be able to help.
The Question of Capacity
Under Washington state law (RCW 11.130.325), a guardian should only “make decisions regarding the support, care, education, health, and welfare of the adult subject to the guardianship to the extent necessitated by the adult’s limitations.” Furthermore, the guardian should “promote the self determination of the adult.” This should extend to a person’s ability to decide to get married.
Because a prenuptial agreement is a contractual obligation, a guardian may need to become involved if a guardianship is in place. Yet, if each party (including the party under the guardianship) is represented by their own attorneys who can ensure that a prenuptial agreement serves the interest of the individual subject to the guardianship, questions of capacity can often be addressed and don’t necessarily need to interfere with your ability to move forward as you wish with your marriage or with a prenup.
If a guardianship is in place, it might be wise to consult with a special needs attorney before you proceed or include a special needs attorney on your collaborative family law team.
Things to Consider in Your Prenup if You Have a Disability or Chronic Illness
If you have a disability or chronic illness, you’ll want to consider how access to government health benefits might be impacted by your marriage, and how your long-term care could be impacted should your future spouse pass away or should you get divorced.
When individuals with special needs gets married, they can sometimes lose access to disability and Medicaid benefits because marriage often changes a person’s financial status. Your prenuptial agreement can include an agreement about how your ongoing health care needs will be met if you suffer this “marriage penalty.”
If you have a special needs trust, you may be able to draw from this account to pay for your health care costs. In most cases, your future spouse will most likely just agree to add you to their current health insurance plan or agree to purchase a plan on your behalf.
Your prenuptial agreement can also include provisions for ongoing spousal support after a divorce or death, to ensure that the spouse with special needs will continue to be supported, whatever happens.
Finally, your prenuptial agreement can also set the foundations for more detailed estate plans. Through your prenuptial agreement, you can make clear whether your partner will be a beneficiary of your retirement pension or life insurance policy. These financial instruments can offer important protections for a special needs spouse.
You may also want to consider whether you’ll want to establish a special needs trust, and specify that certain assets or finances go into the special needs trust if you were to get divorced or pass away to ensure your spouse is able to regain government disability benefits or continue to receive these benefits.
Structuring your divorce settlement or estate plan in this manner can ensure that if you do get divorced or pass away, your special needs spouse won’t lose their government benefits or lose the ability to apply for government benefits due to receiving an inheritance or due to what they received in your divorce settlement.
There are some limitations to what is possible when it comes to special needs trusts, so it’s important to include a special needs attorney, financial planner, or estate planning attorney on your team when writing your prenup.
These are just some things to consider if you are getting married and have special needs. The family lawyers at Truce Law in the state of Washington work with special needs families to help them protect their rights and navigate major life changes.
If you have questions about how your remarriage might impact you, reach out to our collaborative family lawyers today.
Things to Consider in Your Prenup if Your Child Has Special Needs
If a child from a prior marriage has special needs or will have ongoing special needs after he or she turns 18, you also might want to create a prenup before you get remarried that offers guidance about how your special needs child would be cared for should you pass away or get divorced.
Intestate inheritance laws would offer guidance about how a spouse from a second marriage and your children from your first would inherit your estate, but a prenuptial agreement alongside strong estate planning could offer greater clarity. (Under Washington’s intestate inheritance laws RCW 11.04.015, your estate would be divided in half between your spouse and your children). Yet, you might have something different in mind.
A prenuptial agreement alongside strong estate planning can override intestate inheritance laws and allow you to distribute your estate to your children and spouse as you see fit.
For example, you might want your special needs child to receive all your assets, or you might want to put your assets, investments, and property in a special needs trust to ensure that your special needs child benefits from them after you pass away. By putting these assets in such a trust, you can also protect your child’s access to government benefits or support.
Even if you don’t choose to put the assets in a special needs trust, you can earmark these assets for your special needs child and protect them should you get divorced or pass away.
Or you might want to specify that your spouse can receive some of your assets in trust (to ensure that your spouse is cared for during his or her lifetime after you pass away), but specify that when your spouse passes away, the remaining assets in the trust would go to your special needs child or to your child’s special needs trust, and not to your spouse’s heirs.
Children with special needs might need ongoing child support even after they turn 18.
A prenuptial agreement can specify how much money will need to be set aside while you are married to go to your child with special needs to cover living expenses, nursing expenses, health care expenses, and more, thus avoiding any confusion about how money and finances will need to be allocated after you get married. This money can also be flagged or put in a special needs trust to ensure that it isn’t affected by divorce or used for other purposes if you were to pass away.
These are just some things you might want to consider if you have a child with special needs and are getting remarried.
If you have questions about how you can protect your child with special needs as you navigate life changes, reach out to the collaborative family lawyers in Seattle, Washington at Truce Law today. Our collaborative family lawyers can help you not only put together a strong prenuptial agreement, but we can collaborate with special needs lawyers, estate planning attorneys, financial planners, and more to help you protect your children—no matter what.
Life Insurance
One tool that families can use to ensure that a spouse with special needs or a child with special needs is cared for is by buying a life insurance policy. A life insurance policy could ensure that your child with special needs continues to have money to cover living expenses, nursing care, and health insurance costs, even if you were to pass away. Life insurance can also similarly protect a spouse with special needs. When writing your prenuptial agreement, you can include your children or spouse as named beneficiaries, or purchase life insurance in your child or spouse’s name and include this in your prenuptial agreement.
Special Needs Trusts
A special needs trust is a financial tool that may be able to help a person with special needs qualify for government benefits while allowing the person to keep money in a special needs trust to help with additional caretaking, transportation, and medical costs.
The money and assets held in a special needs trust won’t be counted as income or assets for a person applying for government benefits. The money in a special needs trust can be used only for specific purposes, like paying for transportation, caretakers, and out-of-pocket medical expenses.
The best time to create a special needs trust for a spouse or child is now, and if you’re in the process of writing your prenuptial agreement, you might also want to work with a special needs lawyer to determine whether a special needs trust is right for your family and situation.
How Collaborative Lawyers Can Help You with Your Prenuptial Agreement
Special needs marriage and remarriage can raise a range of interdisciplinary law questions. A family lawyer can help you write a strong prenuptial agreement that can outline how property, assets, and debts would be divided in divorce, but a family lawyer alone might not be able to fully address questions related to estate planning or special needs financial planning.
Collaborative family law is particularly suited to helping families navigate the complex questions that can arise with special needs marriage. When you choose the collaborative process to help you with your special needs prenup, you can bring a range of professionals to the table to help you navigate the legal discussions and legal questions that arise.
Writing a special needs prenup using the collaborative law process may include estate planning lawyers, special needs lawyers, and financial planners. Having everyone together at the negotiating table means that everyone is on the same page about your plans.
This can help you plan your remarriage from all angles—including updating your wills, your trusts, your advanced health care directives, your beneficiaries, establishing a special needs trust, and more. With the collaborative process, the focus is on the details and making sure that everything is updated consistently.
If you have questions about how the collaborative family lawyers at Truce Law can help you plan for your special needs marriage. Reach out to our team to book a Case Evaluation.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.