STEP 1: Give Monetary Gifts To Your Loved Ones Before You Get Sick
Of course, there’s no way to know with certainty if or when you will need nursing home care, but giving gifts to your family members well ahead of time helps protect the money from creditors seeking to collect after your death. In the case of Medicaid, any assets you transfer within the five years prior to entering a care facility are subject to seizure after your death. Transferring funds before you fall ill shelters your money and ensures your family members can legally keep the gifts they receive.
STEP 2: Hire An Attorney To Draft A “Life Estate” For Your Real Estate
Naming you as the life tenant and a loved one you trust as the remainderman, with future ownership interest in the property. As a life tenant, you retain the right to continue living in your home until your death. After your death, ownership in the property is transferred to your loved one, which prevents the state from making a claim against it. If you create a life estate and transfer real estate, you’ll incur no penalty if you enter a nursing home, provided the transfer occurred at least five years before your illness. If you enter a nursing home within that five-year window, however, you may incur a financial penalty for transferring property that would otherwise have been available for estate recovery.
STEP 3: Place Liquid Assets Into An Annuity
Some states, such as Colorado, do not count periodic payouts from annuities when determining Medicaid eligibility. Thus, you can transfer your assets into an annuity and qualify for Medicaid-covered nursing home care without having to spend down your assets. If your state does consider annuity payouts when determining Medicaid eligibility, you can still safely transfer assets into an annuity, but you cannot use Medicaid’s services for a specific period of time following the transfer.
STEP 4: Transfer A Portion Of Your Monthly Income To Your Spouse
The Federal Spousal Impoverishment Act protects the spouses of nursing home patients by permitting them to exclude their own income when paying for a spouse’s nursing home care. If your spouse’s income is less than the amount your state exempts, you can direct a portion of your income to your spouse to bridge the gap. The income you transfer to your spouse for monthly maintenance is exempt income and sheltered under federal law.
STEP 5: Shelter Your Money Through An Irrevocable Trust
Unlike a living trust, an irrevocable trust is exempt from nursing home costs. You cannot receive principal from the irrevocable trust, but the periodic interest and dividends you receive from the trust are safe from seizure.
STEP 6: Place Your Assets And Your Spouse’s Assets Into A “pour-over” Trust
This type of trust protects the assets from seizure while still allowing you access to the money. Create or modify your wills to include a testamentary trust providing for the welfare of the surviving spouse. Although a portion of the funds from the original trust “pour over” into the deceased spouse’s estate, the testamentary trust included in his will protects that money from being seized to pay nursing home expenses. This provides financial protection for both you and your spouse regardless of which of you dies first.
Tips & Warnings
- Spousal maintenance cutoff amounts vary by state; however, you can increase the monthly amount you allocate to your spouse by one-third for each dependent adult child or minor child living in your home.
- The Omnibus Budget Reconciliation Act of 1993 gives state Medicaid officials the right to recoup any funds spent on your nursing home care from your estate after your death. Thus, your heirs could stand to lose any assets you did not properly shelter before entering the nursing home.
- You may be responsible for paying a gift tax on any monetary gifts you make to family members above the annual maximum. As of 2012, the maximum amount of money you may give to a loved one tax-free is $13,000. This amount changes periodically. You can verify the current tax-free gift limits on the IRS website.
This article is provided by Dennis J. Toman, CELA, founder of The ElderLaw Firm in Greensboro, North Carolina – one of North Carolina’s TOP Elder Law and Estate Planning Law Firms. Attorney Toman and his firm are Members of the National ElderCare Matters Alliance and have a Featured Listing on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.
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