Family Law for the One-Hundred-Year Life.

• Author: Cahn, Naomi

ARTICLE CONTENTS INTRODUCTION 1695 1. FAMILY AND THE ONE-HUNDRED-YEAR LIFE 1703 A. Longer Lives and New Families 1704 1. The New Old Age: A Time of Opportunity (for Some) 1704 2. Family Formation Trends 1708 3. Implications 1714 B. Familial Caregiving 1716 1. Care Needs 1716 2. Who Provides Care 1718 3. Implications 1721 II. INCREASED LONGEVITY AND THE LIMITS OF CONTEMPORARY FAMILY LAW 1725 A. Family Law's Age Myopia 1726 B. The Consequences of Family Law's Inattention to Older Adults 1728 1. A Failure to Satisfy Older Adults' Relationship Preferences 1729 a. The Misalignment of Legal Marriage 1729 b. Neglect of Other Family Forms 1731 c. The Challenges of Tailoring Family Relationships 1735 2. A Failure to Support Familial Caregiving by Adult Children 1737 III. FAMILY LAW FOR THE NEW OLD AGE 1741 A. The Conceptual Framework 1741 B. Practical Reforms: Family Formation 1745 1. A New Approach to Family Formation 1745 a. Registration of Family Groups: An Opt-In Mechanism 1746 b. Tailoring Marriage: An Opt-Out Mechanism 1752 2. Implementation Issues 1755 a. Knowledge and Access 1755 b. Zoning 1757 C. Practical Reforms: Supporting Family Caregiving 1758 1. Working Within the Libertarian Paradigm 1759 2. Moving Beyond the Privatization of Dependency 1764 CONCLUSION 1768 INTRODUCTION

The United States is experiencing a tectonic demographic shift: the number of adults aged 65 and older is on track to more than double in a single generation, and more than twenty percent of the population will soon be older adults. (1) Longevity has also dramatically increased, (2) with some experts predicting that half of all five-year-olds alive in the United States today will live at least one hundred years. (3) Not only are people living longer, they also are challenging stereotypes about the "fragile" elderly; many older adults are thriving physically and socially, albeit with notable differences by race and income. (4)

The emergence of the new old age has captured the popular imagination, with many self-help books about living long and living well. (5) Scholars across disciplines are engaging with these critical trends, studying many aspects of aging, (6) creating research centers, (7) and establishing an interdisciplinary field of aging studies. (8) Similarly, legal scholars are beginning to address the profound implications of increased longevity and the graying of America, (9) elevating the longstanding field of elder law. (10)

Family law and family law scholars, however, have barely reckoned with the one-hundred-year life or with the needs and interests of older adults. (11) The overall goals of family law are to facilitate family formation and to support families in fulfilling the critical societal function of caring for individuals' dependency needs. (12) But although it is clear from research on aging that families are central to wellbeing in old age, (13) family law fails to address the needs of an aging population. (14)

As this Article argues, the fundamental problem--both conceptually and practically--is that family law is designed for younger people, facilitating child rearing and helping spouses pool resources to build a life together. (15) The prevailing regulatory regime thus obligates parents to children and spouses to each other through strong rules of economic sharing and prioritization of spouses over others. (16) This regime likely reflects the preferences and reinforces the commitment of younger adults entering marriage and planning to raise a family. (17)

But the presumption at the heart of contemporary family law--of young, financially interdependent, conjugal couples, raising minor children--does not consider the interests of older adults. Most older adults will be single at some point (18) and, if they seek to form new family relationships, typically want emotional support and companionship, not a coparent or economic partner. (19) Moreover, many older people want to keep their assets for their adult children, not leave them to a late-in-life spouse. (20) Older adults are thus less likely to want traditional marriage with its presumption of financial interdependence. But they are also a diverse group, varying greatly in their wishes about their preferred family form and in the level of commitment they want to undertake. Some will choose to live together in informal unions; others will eschew coupling altogether and instead choose to satisfy their needs for emotional connection and support by living in nonconjugal dyads or groups--with friends, siblings, and in cohousing arrangements. (21)

Further, with its single-minded focus on the dependency needs of children, family law's age myopia overlooks the dependency needs of older adults. Under our libertarian regime, family members, especially adult children, are the primary source of eldercare. (22) Across the country, familial caregivers are helping older relatives with every aspect of daily life--an undertaking equivalent to an unpaid part-time job for the caregiver. (23) This caregiving supports flourishing by enabling older adults to age in place, a strong preference for most older people. (24) Older adults at all income levels rely on unpaid family caregivers, and Black caregivers spend the most time providing that care, followed by Latinx and Asian family caregivers. (25)

Aging in the United States reflects deeply entrenched inequities, compounding family law's failures. (26) Older persons of color tend to have relatively more health problems, fewer savings, and less accumulated wealth. (27) In general, lower-income older adults experience worse health than middle- and upper-income older adults. (28) Older women often face greater financial hardship than older men. (29) And gay and lesbian older adults are less likely to have adult children. (30) As we explain throughout the Article, these differences impact both family formation and familial caregiving.

Family law doctrine and policy do little to acknowledge these age-related differences and inequities, fundamentally failing to assist older Americans in forming the families that they want and to support the caregiving that almost all individuals will need in old age. Beginning with family formation, the law presents only one option for relationship recognition--marriage, which carries default rules imposing economic obligations and joint decision-making. (31) If older people want intimate partnerships but not the full range of legal consequences that come with it, they have no easily available means for tailoring their commitments. (32) And despite the growing importance of nonconjugal, nondyadic relationships to older people, family law does not recognize these family-like arrangements, instead often creating obstacles to the formation of alternative families. (33)

Family law also does not adequately support families in providing care to older members. To be sure, our libertarian political regime, which privatizes dependency across the lifespan, offers limited support to parents of minor children. (34) But adult children caring for parents receive even less support. (35) The underlying assumption is that family members, typically women, provide care altruistically, despite caregiving's financial, social, and physical toll. (36)

Taken together, family law's failures make it much harder for older adults to live fulfilling lives. Therefore, this Article contends, it is essential to fundamentally rethink family law for the final third of life. Just as two earlier waves of successful legal reform--no-fault divorce in the 1970s and marriage equality beginning in the 2000s--adapted family law to the changing needs of society, so too would the new wave of family law reform we propose.

The family law we envision--family law for the new old age--entails broad-based conceptual and practical shifts to better address the interests and needs of older adults and to support them in leading fulfilling lives. On a conceptual level, we contend that family law doctrine and policy must reflect the empirical reality that families play a crucial role in enhancing the wellbeing of older adults, but it is a different role than in other life stages. (37) Further, family law for the new old age must reflect three core commitments: placing center stage the autonomy interests of older persons, (38) addressing structural inequities, and ensuring that legal mechanisms to support wellbeing in older adults are efficient and accessible.

On a practical level, we propose two core areas of family law reform. The first core area is family formation, decentering traditional legal marriage as the primary option available to older adults. Family law for the new old age recognizes that the interests of older adults will be better served if they can easily customize their preferences for family relationships. Our solution is to offer two sets of options. (39) For older adults who want to marry, family law should provide simple and efficient ways to opt out of marital rights and obligations. For older adults who prefer other family relationships--conjugal or nonconjugal, dyadic or non-dyadic --family law should allow those couples or groups to opt into rights and obligations through a registration system. Today, couples and groups can overcome some of these customization obstacles to family formation through contract, but this option is burdensome and expensive. (40) We therefore emphasize, for all reforms, accessibility and affordability.

The second core area is caregiving, seeking to strengthen family caregiving for individuals later in life. It would be preferable for the state to assume a more active role in supporting older adults, but a sea change in the state's approach to privatizing dependency is not imminent, despite a barrage of compelling criticism in recent decades. (41) Even within the libertarian framework, however, there is much that the law can and should do to better support family members caring for older...