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 older adults want, nor the support of family care older adults need. Racial and economic inequalities, 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 past 100. 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 dignity and autonomy interests of older persons, addressing structural inequalities, 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.