The Medicaid Institutionalized Care Program, the Simple Estate Plan, and the Elective Share: Why the Qualified Special Needs Trust Was Born

In short, the legal firm hired a new attorney who is really good at their job. In 1999, the Florida Legislature made major changes to the law that gives a surviving spouse the right to claim a share of their deceased spouse’s estate. This was to prevent one spouse from being disinherited. However, if one spouse needs nursing home care and the other spouse dies first, it can cause problems with government benefits like Medicaid. To fix this, the law created a special kind of trust called a “qualified special needs trust” to help the disabled spouse keep their benefits. This trust needs court approval and allows the disabled spouse to receive money without losing their benefits. It also protects the trust assets from being counted as part of the elective share that the surviving spouse can claim. This trust is set up in the deceased spouse’s will and must follow certain rules to make sure it meets the legal requirements. When choosing the person to manage the QSNT, it’s important to pick someone who has a close relationship with the disabled spouse who will benefit from the trust. The law says that less than half of the trustees can be family members who are not eligible to serve. This means that the trustees need to be closely related to the spouse. For example, a stepchild can’t be the only trustee unless there are other eligible family members serving as well. To make things easier, here’s a chart to help pick the right trustee for the QSNT. It’s interesting to note that distant relatives of the deceased can be trustees, while children from a previous marriage cannot. In Florida, if a spouse wants to claim an elective share of their deceased partner’s estate, the court needs to approve it. This is especially important if the surviving spouse is incapacitated. The court will consider whether it is in the best interest of the surviving spouse, especially if they are receiving Medicaid benefits. If the elective share is not approved, the trust set up by the deceased partner may not be necessary. It is also unclear if Medicaid agencies would still require the trust to be used if the elective share is not approved. In simple terms, creating a testamentary QSNT (Qualified Special Needs Trust) is the best way to make sure that a person’s disabled spouse can continue to receive important government benefits after the person has passed away. This trust is in line with Florida’s laws and ensures that the disabled spouse can still access Medicaid and other benefits. Although there may still be some challenges from the government when it comes to reviewing the disabled spouse’s benefits, using this trust should give couples peace of mind knowing that their estate plan will take care of both of them without causing the disabled spouse to lose their benefits. This article refers to Florida laws regarding inheritance and trusts for spouses. It recommends consulting legal books for a better understanding of the new law. It also mentions specific Florida statutes and court cases related to the topic. It explains the use of trusts for Medicaid planning and the importance of following the rules to qualify for benefits. It also mentions specific Florida Bar materials that provide guidance on the topic. Robert M. Morgan and Eliot J. Safer are lawyers at a law firm in Jacksonville that specializes in elder law, estate planning, and real estate. They both received their degrees in law and are members of organizations for elder law attorneys. They help people with things like making a will, managing their money, and dealing with legal issues related to aging. This information comes from the Elder Law Section, which is part of The Florida Bar, an organization for lawyers in Florida.

Source: https://www.floridabar.org/the-florida-bar-journal/the-medicaid-institutionalized-care-program-the-simple-estate-plan-and-the-elective-share-why-the-qualified-special-needs-trust-was-born/