Prenups and Eldercare - Premarital Agreements for Elderly Couples

George Slater has been one of the big names in Indiana elder law as long as I remember. Now he has a blog Legal Issues in Eldercare. I suggest reading it for the general subject matter but I found Premarital Agreements for Elderly Couples to have relevance for this blog: "

Without a premarital agreement a spouse cannot be disinherited. There is an obvious public policy concern about spouses disinheriting each other and so there are laws that allow a surviving spouse to take a share of the deceased spouse's estate even if they are left nothing. This share is between 25% and 50% depending upon the circumstances. A premarital agreement waives the right to this elective share."

Slater gives a list of points to remember about premarital planning but I think these two stand out:

I think it is important to talk about who is responsible for health care costs because these can be significant. Medicaid is the program that pays for the majority of nursing home care in Indiana and Medicaid ignores premarital agreements. This means that even if there is a valid premarital agreement that says each spouse is on their own, Medicaid will still combine their assets for eligibility purposes.

The new couple can combine some assets in joint accounts and such accounts will not be bound by the premarital agreement. The agreement will control only those assets kept in separate name.