The Golden Years, Gray Divorce, Pink Caretaking, and Green Money

• Author: Naomi Cahn
• Position: Harold H. Greene Chair Professor of Law, The George Washington University Law School. This piece draws heavily on my work with Professor June Carbone and Rev. Amy Ziettlow. Thanks to Jessica Dixon Weaver for organizing the 2018 AALS program, Family Separations and Breakdown in the Trump Era, at which I first presented this work. I appreciate ...
• Pages: 57-86

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* Harold H. Greene Chair Professor of Law, The George Washington University Law

School. This piece draws heavily on my work with Professor June Carbone and Rev. Amy

Ziettlow. Thanks to Jessica Dixon Weaver for organizing the 2018 AALS program, Family

Separations and Breakdown in the Trump Era, at which I rst presented this work. I appreciate

Erez Aloni and Linda McClain for their review and comments, and I thank Mohammad

Zaheerudin for research assistance and Bluebooking.

The Golden Years, Gray Divorce,

Pink Caretaking, and Green Money

NAOMI CAHN*

Introduction

Hillary Clinton and Donald Trump have little in common—one of the

only similarities is that they are both Baby Boomers. That means they are

part of the largest generation to date to confront, and experience, aging

in America. They also represent the diversity of Baby Boomers—Hillary

Clinton married at the age of twenty-seven and has one child, whereas

Donald Trump is on his third marriage and has numerous children. Like

others of their generation, their experiences of growing old in America and

facing serious illness are dened, in part, by their marital practices and

fertility rates—although, unlike others, they experience class protection.

This Article considers the impact of changing family structures

on aging in the Age of Trump. It looks at two critical and interrelated

aspects of aging—economic security and caretaking—and offers policy

suggestions on how to improve the nancial stability of and caretaking

possibilities for elders. The core thesis is that our current social, legal, and

economic structure for growing old is organized around the nuclear family

with respect to both caretaking and nancial security. As family structures

change in terms of partnering (and re-partnering and non-partnering)

and number of children, and with the increase in economic inequality,

support for old age needs to change as well. Nonetheless, notwithstanding

changing family forms and roles and economic disparities, we have not

made the requisite changes to prepare for the forthcoming silver tsunami.

Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

58 Family Law Quarterly, Volume 52, Number 1, Spring 2018

Contemporary legal approaches to aging reify the middle- and

upper-middle-class intact nuclear family, enshrining class, gender,

and marriage.1 The result is that women and minorities experience

higher poverty rates as they age. The solutions do not necessarily

involve entirely unmooring caretaking and benets from family but

do involve “spreading the wealth,” assuring that those left out of

current nuclear-family-based transfers are not left out of nancial

security or caretaking, and that those who provide caretaking are

appropriately recognized. That means making some changes to

existing qualications for benets, as well as developing new

means for the inclusion of those left out. To be sure, many others

have commented on how each of these separate pieces is organized

around the nuclear marital family; this Article brings those pieces

together and provides a new perspective on the relationship between

socioeconomic class, family, and the social and cultural structures

surrounding aging.

Part I looks at family structure and our changing socioeconomic

environment; Part II looks at how caretaking and economic security are

organized around the nuclear family; and Part III offers solutions.

I. Family, Economics, and Caretaking

Today, there are 46 million Americans aged sixty-ve and older,

and it is expected that the number of individuals in this age range

will double to over 98 million by 2060, meaning that the sixty-ve-

and-older age group’s share of the total population will rise to nearly

24% from 15%.2 Consequently, since women live longer than men, it

1. See Anne L. Alstott, Updating the Welfare State: Marriage, the Income Tax, and Social

Security in the Age of Individualism, 66 tax. l. rev. 695 (2013); Pamela Herd, Reforming a

Breadwinner Welfare State: Gender, Race, Class and Social Security Reform, 83 soC. ForCes

1365, 1389 (2005) (nding that welfare benets “connected to marital status, even those

intended to offset the costs of marital dissolution, still favor wealthier white women”); Maxine

Eichner, The Family, in Context, 128 harv. l. rev. 1980 (2015) (reviewing JUne CarBone

& naomi Cahn, marriaGe markets: how ineQUality is remakinG the ameriCan Family

(2014)); Joanna Zhang, Marriage in the Golden Years: Revisiting Benets and Obligations in

Light of the New Individualism, 38 n.y.U. rev. l. & soC. ChanGe 361, 365 (2014); see also

amy ziettlow & naomi Cahn, homeward BoUnd: modern Families, elder Care, and loss

(2017) (discussing how care is organized in different family forms).

2. Mark Mather, Fact Sheet: Aging in the United States, popUlation reFerenCe BUreaU

(Jan. 13, 2016), http://www.prb.org/Publications/Media-Guides/2016/aging-unitedstates-fact-

sheet.aspx.

Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.