Disability and Marriage
By Herbert D. Hinkle, Esq.
Marriage is an especially complicated issue for people with disabilities and their families. Here are some thoughts on the subject.
New Jersey law prohibits the issuance of a marriage license to someone under guardianship. This is an old law and possibly one that is unconstitutional. The courts do have authority to limit guardianship in a way that would not prohibit marriage, so the problem can be overcome. And, as one parent observed, what prevents marriage in another state?
Another issue involves Social Security benefits paid to a disabled son or daughter with a disability based on the work record of a parent. This frequently occurs when a parent retires and collects Social Security benefits (it can also occur if a parent dies or becomes disabled and unable to work). The disabled child can collect benefits for the remainder of his or her life, provided the child meets certain criterion. But if the child marries, the parent’s Social Security benefits will be discontinued unless the spouse is also entitled to Social Security benefits.
The thorniest problems are social. For instance, does the person have the capacity to understand what marriage entails? Is the commitment between the partners mutual and genuine or is it being imposed on one or both of them by others? Our firm has seen several cases in which an impoverished family sought to have their adult child with disabilities marry the disabled child of affluent parents.
Another issue involves children. Who will raise the children of the marriage where the partners are unable to do so themselves? If the disabled parents are living in a government-funded supervised living arrangements, will the government assume this responsibility and; if so, how effectively will it do so?
In many situations, marriage is not a concern because the child’s disability is too severe. But in planning trust arrangements for a child with a disability, marriage must be considered; not only to make sure there are funds to enable the marriage to flourish, but also to protect the funds in the case of a divorce.
Hinkle,
Fingles, & Prior a multi-state law practice with offices in Lawrenceville, Cherry Hill, Florham Park, and Paramus, New Jersey, and Plymouth Meeting and Bala Cynwyd, Pennsylvania. They lecture and write frequently on topics of elder law, estate planning, special needs trusts, guardianship, special education, health care insurance & Medicaid, and accessing adult services and are available to speak to groups in New Jersey and Pennsylvania at no charge.
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2009 Hinkle, Fingles & Prior, Attorneys at Law. All rights reserved.
