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NS-Medicaid and Community Spouse Income & Special Needs Trust in Will
Jan L. Warner & Jan Collins

Question: After paying private-pay nursing home rates for my husband for three years – more than $175,000 -- I finally figured out that if I did not qualify him for Medicaid, I would lose everything and be totally dependent on our children.

By getting him on Medicaid, I was able to keep my house, a car, a small policy of life insurance, and just over $80,000 in cash. Since my only income is Social Security and some small interest payments, I now receive most of my husband’s Social Security. But I am still struggling financially. Our two children are concerned about me and want to give me $10,000 each year as gifts. I am afraid that if they give me money and I go over the limits, my husband will lose his Medicaid and I will be back where I started. How can they help me without disqualifying him?

Answer: According to federal law, once your husband (“the nursing home spouse”) has qualified for Medicaid according to a financial “snapshot” of you and your husband, you (“the community spouse”) were “split off” from him, and your assets are no longer considered available to him. This means that under the current state of the law, you could win the lottery and your assets wouldn’t be available to pay for your husband’s nursing home care. However, if your income increases, the amount you receive from your husband’s Social Security will decrease by that amount. If your children are thinking about helping you in a meaningful way, you and they should seek out the services of a qualified attorney who can assist you in preparing and implementing a plan. And see our last two columns that dealt with reverse mortgages.

Question: My wife is in a nursing home and is on Medicaid. I have terminal cancer and a life expectancy of less than six months. I own a house and have nearly $50,000 in CD’s that I want to go to our children because, if it goes to my wife, she will be disqualified from Medicaid and the assets will be lost. I hired a lawyer to help me with my will, and he told me that under the law of our state, I must leave my wife at least one-third of my assets without exception. Is this correct?

Answer: It depends on where you live. If you live in a state where surviving spouses are entitled to what is called an elective share, your wife will be entitled to make this election to receive one-third of your probate assets. Again depending on where you live, you could leave one-third of your probate assets into a qualified terminable interest property trust (QTIP) and satisfy the elective share. Under a traditional QTIP trust, your wife would be entitled to the income the assets used to fund this trust, but not necessarily the principal, and at her death, what is left would be distributed to your children.

Another type of trust that may be effective is a special needs trust that can also be established in your will. In this way, you can make sure your wife receives certain benefits during her lifetime without disqualifying her from Medicaid. You could name one of your children as trustee. At your wife’s death, the trustee would distribute the remaining assets to your children.

The advantages of a properly prepared special needs trust include: (1) the ability to separate trust distributions from your wife’s actual income so she can receive benefits without Medicaid disqualification; (2) the assets of the trust will not be subject to payment of her medical bills and will not risk her Medicaid coverage; (3) your wife will be able to receive things she may need but which are not covered by governmental programs; and (4) the cost of administration is not great if a child is trustee. On the other hand: (1) the trust must file tax returns and have its own federal identification number; (2) the trustee must be schooled about how to distribute the funds and for what purposes; and (3) the paperwork is complex. In our view, a qualified attorney should prepare the trust and advise the trustee thoroughly.

We recommend that all elderly persons consider wills with special needs trusts as part of their planning process. Because of the complexities involved, these trusts should be drafted only by attorneys who are competent in this field of law.

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