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Stop! Don’t Disinherit Your Spouse Who Needs Long Term Care


Today we see more chronic illnesses (i.e. Alzheimer’s disease; Parkinson’s disease; dementia) that are causing people to provide care or seek long-term care services for an incapacitated spouse.  Chronic illness can trigger the fear of impoverishment or the fear of outliving one’s money.  When couples and families consider applying for Medicaid assistance it is not uncommon for them to think that the healthy spouse must disinherit the ill spouse.  Nothing is further from the truth.
Many years ago Florida passed the elective share law.  This means that you cannot disinherit your spouse (unless you have a pre-nuptial or post-nuptial agreement).  Your spouse is entitled to 30% of your assets.  If your spouse is seeking to qualify for Medicaid assistance it is important that your estate plan include a special needs trust to receive your spouse’s inheritance.  That way if you pass away first your assets will not be distributed directly to the Medicaid spouse causing a loss of Medicaid due to excess resources.
The special needs trust will allow your spouse to continue to receive Medicaid and the trust assets can be used to provide your spouse with quality of care and quality of life.  The special needs trust assets can be used to purchase goods and services not covered by Medicaid such as:

  1. a private room
  2. private duty nursing or, home health aide services
  3. special equipment
  4. additional therapies, and much more

The elective share special needs trust must be created in your Last Will & Testament while you are alive. Remember that as a caregiver you need to take care of yourself. This includes making the time to have a qualified elder law attorney prepare your documents. Forbes magazine recently published an article on the importance of having proper legal documents. The National Academy of Elder Law Attorneys has compiled a list of the most important documents every person should have.  Click here to read the article.

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