Family Law for the One-Hundred-Year Life
abstract. Family law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form—marriage—and centers the dependency needs of children.
This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms many older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these problems. Family law’s failures are particularly pressing in light of a tectonic demographic shift underway in our society: Americans are living longer, with half of all five-year-olds today projected to live more than one hundred years. The proportion of older adults as a percentage of our population is also rapidly growing and will soon surpass that of minor children.
This Article argues that family law must adapt to the new old age. At a conceptual level, family law should address the interests and needs of families across the life span, not just those of younger people. And it must reflect three core commitments: centering the autonomy interests of older persons, addressing structural inequities, and ensuring that legal mechanisms are efficient and accessible.
This conceptual shift leads to a series of practical reforms to laws governing family formation and family support. The interests of older adults will be better served if they have access to a broader array of family forms and can easily customize these family relationships. We thus propose reforms that decenter marriage as the primary option and make it easier to opt into and out of legal obligations. To support the familial caregiving that is essential to wellbeing, we propose a set of reforms to federal, state, and local laws that would provide economic relief and other support to family caregivers. By offering pluralistic family forms, better support for familial caregiving, and an appreciation of the legal implications of the centrality of relationships in the last third of life, this Article charts a path for family law for the one-hundred-year life.
authors. Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc ’69 Research Professor in Democracy and Equity, University of Virginia School of Law; Joseph M. McLaughlin Professor of Law, Fordham Law School; and Harold R. Medina Professor, Emerita, Columbia Law School. For helpful comments and suggestions, we thank Erez Aloni, Anne Alstott, Susan Block-Lieb, James Brudney, Alex Boni-Saenz, June Carbone, Mary Anne Case, Courtney Cox, Nestor Davidson, Elizabeth Emens, Paolo Galizzi, Samantha Godwin, Abner Greene, Nina Kohn, Kaiponanea Matsumura, Shefali Milczarek-Desai, Doug NeJaime, Cynthia Nicoletti, Naomi Schoenbaum, Robert Scott, Tara Sklar, Jane Spinak, Jessica Dixon Weaver, Benjamin Zipursky, and the participants at faculty workshops at Columbia Law School, Fordham Law School, Ohio State Law School, and William & Mary Law School. We also thank participants in the Workshop on Regulation of Family, Sex, and Gender at the University of Chicago School of Law; the Ethics of Choice Conference: Wealth Gains and Gaps, at the University of Richmond; the Aging, Health, Equity, and the Law conference at Touro Law School; the Association of American Law Schools’ Annual Meeting, Section on Aging and the Law; the New York Area Family Law Scholars workshop; the Nonmarriage Roundtable 2021; the Family Law Scholars and Teachers annual conference; and the Yale Law Journal Legal Scholarship Workshop. For excellent research assistance, we thank Makenna Cherry, Max Larson, Megan Lee, and April Yu. Finally, special thanks to the Yale Law Journal editors, and especially to Alexis Kallen.
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 long-standing 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 point18
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 nondyadic—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 adults. The presumption that family care is provided gratuitously and effortlessly pervades family law and related doctrines. To undermine this assumption and to provide concrete assistance, we propose a set of reforms that would provide economic relief and other support to familial caregivers.42 Individually, these shifts in law and policy may seem minor, but taken together they can weaken, and perhaps even eliminate, the presumption that intrafamilial care is provided gratuitously and need not be supported. And they can mitigate some of the economic, social, and physical costs of unpaid caregiving. We also consider more far-reaching change that would move beyond the privatization of dependency.
As this discussion makes clear, the wave of reform that we propose will include core aspects of family law, such as family formation, as well as areas of law that affect families even as they are not traditionally considered a part of family law, like zoning regulations and the tax code.43 With this broad understanding of family law in mind, we address multiple areas of the law that create significant obstacles to family formation and eldercare.
In exposing fundamental deficits and proposing a family law for the new old age, this Article fills a significant gap in the literature. It brings family law scholars into the debate about how to address radically increasing longevity and the rapid graying of the American population. This Article also contributes to the ongoing debate about family law’s privileging of the marital family. Many scholars, including each of us, have criticized family law for its emphasis on marriage and its general disregard of nonmarital families.44 But legal scholars have paid little attention to the way in which family law’s preoccupations harm older adults. As we show in this Article, that damage is different and deserves its own response.
In Part I, we describe and reflect on the trends in family formation and familial caregiving, noting the growing importance of these issues in light of increased longevity and the graying of America. In Part II, we argue that family law suffers from age myopia, offering neither the family forms older adults want nor the support of family care older adults need. In Part III, we propose a family law for the new old age, which begins with a conceptual shift in family law so that it addresses the needs and preferences of older adults and includes practical reforms; we also identify open substantive questions and implementation issues.
By offering a pluralistic array of family forms, better support for familial caregiving, and a broad new understanding of the legal implications of the centrality of relationships in the last third of life, family law for the new old age meets the moment. It is an ambitious agenda that will require changes in federal, state, and local law. And it is past the time to start.
See Older Americans 2020: Key Indicators of Well-Being, Fed. Interagency F. on Aging-Related Stats., at xvi (2020) [hereinafter Older Americans] (explaining that by 2030, the population over the age of 65 “is projected to . . . [grow] from 35 million [in 2000] to 73 million”).
Throughout this Article, we refer to “older adults.” In general, we use this term to refer to people aged 65 and older, although we recognize that legal systems use different age cut-offs in different contexts and that age can be measured in ways other than chronologically. See generally Alexander Boni-Saenz, Legal Age, 63 B.C. L. Rev. 521 (2022) (describing chronological, biological, and subjective conceptions of age).
Life expectancy for older people has grown significantly, with an older person now expected to live eighty-five years. See Life Expectancy at 65, Org. Econ. Coop. & Dev. (2022), https://data.oecd.org/healthstat/life-expectancy-at-65.htm [https://perma.cc/3UW6-PH6S]; see also Elizabeth Arias & Jiaquan Xu, United States Life Tables, 2020, 71 Nat’l Vital Stats. Reps. 1, 5 fig.1 (Aug. 8, 2022) (showing life expectancy at birth, in contrast to other studies showing life expectancy for those who survive to age 65). Some demographers contend life expectancy has been increasing approximately 2.5 years every decade for the past 150 years, and there is no evidence that we are close to a biological limit on life expectancy. Jim Oeppen & James W. Vaupel, Broken Limits to Life Expectancy, 296 Sci. 1029, 1031 (2002).
The New Map of Life: 100 Years to Thrive, Stan. Ctr. on Longevity 2 (Nov. 2021), https://longevity.stanford.edu/wp-content/uploads/2021/11/NMOL_report_FINAL-5.pdf [https://perma.cc/2R4J-YVES]; see also Oeppen & Vaupel, supra note 2, at 1031 (noting that “centenarians may become commonplace within the lifetimes of people alive today”). Increased longevity is one of several trends contributing to the rapid graying of the United States. See infra text accompanying note 53 (identifying three forces driving the graying of America: increasing longevity, decreasing fertility, and slowing immigration).
See, e.g., Andrew J. Scott & Lynda Gratton, The New Long Life: A Framework for Flourishing in a Changing World passim (2020); Nir Barzilai, Age Later: Health Span, Life Span, and the New Science of Longevity 9 (2020) (predicting that, in the “near future,” we will be living healthy and vital lives in our nineties and beyond); David A. Sinclair & Matthew D. LaPlante, Lifespan: Why We Age—and Why We Don’t Have To 87-115 (2019) (offering a geneticist’s advice on how to slow, if not reverse, the aging process); Lynda Gratton & Andrew Scott, The 100-Year Life: Living and Working in an Age of Longevity passim (2016) (discussing how to rethink finances, education, career, and relationships to create a fulfilling one-hundred-year life). Not all depictions are rosy. See, e.g., Roz Chast, Can’t We Talk About Something More Pleasant? (2014) (discussing the reality of life for her parents in their nineties).
Researchers in several disciplines—including scholars in demography, see, e.g., Oeppen & Vaupel, supra note 2, medicine, Why Study Centenarians? An Overview, B.U. Sch. of Med., https://www.bumc.bu.edu/centenarian/overview [https://perma.cc/M5GH-WD5E], and economics, Andrew J. Scott, Martin Ellison & David A. Sinclair, The Economic Value of Targeting Aging, 1 Nature Aging 616 (2021)—are studying longevity and old age.
See, e.g., 100 Years to Thrive, Stan. Ctr. on Longevity, https://longevity.stanford.edu/about [https://perma.cc/TQ3F-W9CU] (“The mission of the Stanford Center on Longevity is to accelerate and implement scientific discoveries, technological advances, behavioral practices, and social norms so that century long lives are healthy and rewarding.”); Our Research, Ctr. for Ret. Rsch. Bos. Coll., https://crr.bc.edu/about-us/our-research [https://perma.cc/D3MS-7LXS] (“[O]ur research covers any issue affecting individuals’ income in retirement.”).
The interdisciplinary study of aging views aging “as a phenomenon that is inextricably caught up in and realized through social and cultural practices, much in the same way that such embodied entities as gender, race, disability, or sexuality are. Such a perspective puts what may be termed a rather queer light on gerontology.” Chris Gilleard, Aging and Aging Studies: Celebrating the Cultural Turn, 1 Age Culture Hums. 35, 36 (2014).
For the earliest works in the legal academy on the one-hundred-year life, see Anne Alstott, Law and the Hundred-Year Life, 26 Elder L.J. 132 (2018); and Michael C. Pollack & Lior Jacob Strahilevitz, Property Law for the Ages, 63 Wm. & Mary L. Rev. 561 (2021), which analyzes the many ways in which the common law of property reflects the interests of young and middle-aged white men and does not account for an aging population.
The field of elder law focuses on old age, but elder-law scholars generally do not address family law issues, such as family formation. See Nina A. Kohn, A Framework for Theoretical Inquiry into Law and Aging, 21 Theoretical Inquiries L. 187, 188 & 192 (2019) (arguing that research on issues such as how to encourage familial care for aging adults is “much-needed”). Instead, elder law addresses questions adjacent to those we explore in this Article, such as governmental support programs, estate planning, and guardianship. See id. at 199. Practitioners of elder law provide legal services to older adults, and much of the focus is on health issues, such as qualifying for Medicaid or end-of-life planning, with relatively little attention devoted to family law issues, including grandparents’ rights. See id. at 188. For further discussion of elder law, see Naomi Cahn, Changing Demographics, Elder Law, and Trusts and Estates, 46 Am. Coll. Trusts & Ests. Couns. L.J. 15, 15-16 & 21 (2020), which explores how changing family structures affect trusts and estates.
Although most family law scholars have yet to grapple with these critical shifts in aging, a few scholars have addressed important aspects of family law and aging. See generally Jessica Dixon Weaver, Grandma in the White House: Legal Support for Intergenerational Caregiving, 43 Seton Hall L. Rev. 1 (2013) [hereinafter Weaver, Grandma in the White House] (analyzing the caregiving provided by older adults); Jessica Dixon Weaver, The Perfect Storm: Coronavirus and The Elder Catch, 96 Tul. L. Rev. 59 (2021) (coining the phrase “the elder catch” to describe the dual demands on adults to work and care for aging parents and children and describing the financial and mental strain this creates, especially for women). For preliminary thoughts on the intersection of aging studies and family law, see Naomi R. Cahn, The Golden Years, Gray Divorce, Pink Caretaking, and Green Money, 52 Fam. L.Q. 57, 65 (2018).
See Carl E. Schneider, The Channelling Function in Family Law, 20 Hofstra L. Rev. 495, 497-98 (1992) (setting forth five functions of family law: protecting citizens from harm by other citizens, especially harm from parents and spouses; helping people to organize their lives as they wish by giving effect to contracts about private affairs; resolving disputes within the family, especially at the end of relationships; expressing society’s views about desirable behavior; and channeling people into social institutions that are widely believed to further desired ends, notably marriage and parenthood).
Throughout the Article, we analyze family law in both its narrow and broader sense. See Kerry Abrams, Family History: Inside and Out, 111 Mich. L. Rev. 1001, 1003-08 (2013). In its narrow sense, family law creates categories of legal relationships, governs entry and exit from those relationships, and regulates behavior during them. See id. In its broad sense, family law includes the ways related areas of law shape and influence family life, from zoning regulations to criminal law. See id. As we demonstrate, in both its narrow and broad sense, family law must address the needs of older adults for meaningful relationships and familial support.
In defining the scope of family law, this Article takes into account the important observation of Jacobus tenBroek in the early 1960s concerning family law for the rich contrasted from family law for the poor. Although family law is neutrally applied regardless of income, there are two different family law systems: one set of regulations that applies to the wealthy, who are able to opt out of default rules and have little political oversight, and another set that applies to the use of public funds, which affects the poor and subjects them to stringent monitoring by the state. Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development, and Present Status, Part I, 16 Stan. L. Rev. 257, 257-58 (1964).
Indeed, scholars have argued that the default rules regulating marriage and divorce embody the terms that would be chosen by couples executing a hypothetical bargain as they enter marriage and plan to start a family. See generally Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 Va. L. Rev. 1225, 1301-32 (1998) (analyzing marriage and divorce law as majoritarian default rules derived in a hypothetical bargain framework); Elizabeth S. Scott, Marriage, Cohabitation, and Collective Responsibility for Dependency, 2004 U. Chi. Legal F. 225, 243 (arguing that the obligations undertaken in entering marriage reinforce commitment and stability).
See Maxine Eichner, The Free-Market Family: How the Market Crushed the American Dream (and How It Can Be Restored) 19-21 (2020) (describing the system in the United States of limited state support for caregiving and instead the country’s reliance on families to provide this care); infra text accompanying notes 107-138 (describing the caregiving needs of older adults and the role of family members in providing it, and further noting that adult daughters and wives are overwhelmingly the caregivers in their families).
See Gai Wettstein & Alice Zulkarnain, How Much Long-Term Care Do Adult Children Provide?, Ctr. for Ret. Rsch. Bos. Coll. 1, 2 (June 2017), http://crr.bc.edu/wp-content/uploads/2017/06/IB_17-11.pdf [https://perma.cc/55CM-LYLD] (estimating that each month adult children provide about seventy-seven hours of unpaid care to parents or parents-in-law).
See Caregiving in the U.S., AARP 31 (May 2020), https://www.aarp.org/content/dam/aarp/ppi/2020/05/full-report-caregiving-in-the-united-states.doi.10.26419-2Fppi.00103.001.pdf [https://perma.cc/SXQ5-83X4] (“African American [family] caregivers report providing more hours of care each week (31.2 hours on average) than either White (21.2 hours) or Asian American (24.1) caregivers. Hispanic caregivers provide 26.0 hours of care weekly . . . .”); see also id. at 38 (noting that as compared with white family caregivers, Latinx and African American caregivers provide more help with medical and nursing tasks).
See Danielle Taylor, Same-Sex Couples Are More Likely to Adopt or Foster Children, U.S. Census Bureau (Sept. 17, 2020), https://www.census.gov/library/stories/2020/09/fifteen-percent-of-same-sex-couples-have-children-in-their-household.html [https://perma.cc/8ZJG-SMSR] (noting that 14.7% of same-sex couples and 37.8% of different-sex couples in the United States had at least one child under the age of eighteen in their households).
Family law scholars have long debated the balance between autonomy and dependency, but this debate focuses primarily on adolescents. See id. at 1440-44 (demonstrating that the law recognizes the decision-making capacity of adolescents through such mechanisms as the mature minor doctrine); Anne C. Dailey & Laura A. Rosenbury, The New Law of the Child, 127 Yale L.J. 1448, 1496-1505 (2018) (arguing that the law should do more to foster and respect children’s development and expression of their interests and beliefs). We lack the same discourse about the reality of dependency in old age, even though it is central to flourishing in old age.
In this Article, we largely set aside the issue of diminished decision-making capacity that some older adults experience. Instead, we assume that older adults have the capacity to make decisions about their families and their care.
Cf. Erez Aloni, Registering Relationships, 87 Tul. L. Rev. 573, 599 (2013) (proposing a range of relationship forms and allowing people to choose); William N. Eskridge, Jr., Family Law Pluralism: The Guided-Choice Regime of Menus, Default Rules, and Override Rules, 100 Geo. L.J. 1881, 1889-90 (2012) (arguing for more state-recognized relationship options).
Scholars have shown how the single-minded focus on marriage harms other families and can undermine the very purposes that family law aims to promote—intimacy, care, and the stability in raising children. See, e.g., Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167, 202-10 (2015) (arguing that family law’s rules and institutions are based on marital relationships, to the detriment of nonmarital families); see also Naomi Cahn & June Carbone, Blackstonian Marriage, Gender, and Cohabitation, 51 Ariz. St. L.J. 1247, 1248 (2019) (“[O]ur approach to nonmarital relationships rests on the principle that such relationships should be seen as one of a continuum of possible types of intimate relationships . . . .”); cf. Scott, supra note 17, at 248 (arguing that the lack of legal recognition of cohabitation relationships results in poor support for dependency).