Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, August 29, 2022

Marriage Penalty for Older Couples

From MarketWatch:

A devastating new critique in the Washington University Law Review has spelled out how federal law punishes older couples for being married. 

It’s not just that if you meet and fall in love during your golden years you may be much better off staying unwed than tying the knot; it’s that under current federal law if you and your long-term spouse make it into your 60s you might well be able to help your struggling finances by divorcing.

These are the implications of “Preferencing Nonmarriage In Later Years,” by law professor Richard Kaplan, the Guy Raymond Jones Chair in Law at the University of Illinois.

He highlights two key areas of elder finance where a couple is often better off unmarried than married: Social Security and nursing-home care. As these are two of the most important financial issues facing all elders, the argument about elder marriage — or elder divorce — may be more than academic.

On Social Security, Uncle Sam started taxing benefits in 1983. As Kaplan points out, the taxation system is so “bizarre” (his word) that taxes are higher on a married couple than on an unmarried couple with the exact same finances. That’s because Social Security taxes kick in at two thresholds, and in both cases, Kaplan says, “the applicable threshold for a married couple is less than twice the threshold for an unmarried person.” 

Read more here.

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