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Estate Planning for Surviving Spouses
After losing a spouse or longtime partner, it’s very difficult to look past your grief. However, it’s also important to understand the timely decisions you must make regarding your finances and personal estate plan.
Estate planning is an ongoing process, as it accounts for changes in marriages, deaths, divorces, and births of children and grandchildren. Assuming your spouse left an updated estate plan before their passing can have unintended consequences.
Review Both Estate Plans
To avoid problems, first schedule a meeting with your estate planning attorney at Elville and Associates. With them, you can take some time to review your estate plan as well as your spouse’s.
It is not uncommon to discover assets you are unaware of, allowing for planning opportunities to transfer tax-free wealth. With the loss of a spouse’s income, uncovering assets may also help secure a widow or widower’s finances. You may also discover incomplete beneficiary designations, incorrect titling of assets, or an overlooked grandchild who is new to the family.
Rules and Deadlines Regarding Asset Transfers
Your estate planning attorney can also advise you of the decision-making deadlines inherent to your situation. There are some powerful wealth transfer tools available to you as a surviving spouse. For instance, you may opt to transfer interest in some of your late spouse’s assets to other beneficiaries. Note, however, that this must occur within nine months of your spouse’s date of death.
Tax Laws That Affect Your Inheritance
Inheritance tax laws can be confusing. As a surviving spouse, you have the option to file a federal tax return for that year as a single individual or as a married couple to receive higher deductions as long as you don’t remarry that year.
Regarding the decedent’s estate tax return, a surviving spouse may need to make a portability election maximizing the amount transferred estate-tax-free to the next generation. If the decedent didn’t use a revocable trust to shelter assets from the probate process, there are timelines to meet with the probate court. Many more scenarios exist, and a surviving spouse must prioritize assessing the estate plan and finances while grieving.
After a spouse passes, much of the attention of legal services focuses on managing their estate, rather than the legal needs of the surviving spouse. There are circumstances when wills and trust configurations permit a surviving spouse a “second look” to see if the decedent’s estate plan is still a proper fit. Existing estate plan documents in the surviving spouse’s name require review to change beneficiaries or representatives as necessary.
Aside from Wills and Trusts, Review Related Legal Documents
Durable Powers of Attorney (DPOA)
A durable power of attorney lets you name an individual to act on your behalf for financial matters. During your lifetime, this person is typically your spouse. As the surviving spouse, you must identify another trusted person to replace your spouse as power of attorney.
Medical Power of Attorney (Health Care Proxies)
You’ll also have to select an individual as your new health care agent if your spouse had been your representative. If you become ill and cannot communicate your health care decisions, your medical POA can make medical decisions on your behalf. If you have an alternate designation on the health care proxy, review the choice to ensure that person is still appropriate. Or, you may remove them and name a new health care agent.
These documents are often on file with your primary care physician. Be sure to provide an updated copy to anyone who has the old document and make them aware of any changes.
HIPAA Release Forms
Even if you have a medical power of attorney, you may still want to ensure that other family members can discuss your health situation with medical professionals. If so, you must sign a HIPAA release form to access your medical records. Be sure your primary care provider has a legal copy of this form.
Consult With Your Estate Planner
Reviewing and making appropriate changes to your estate plan with guidance from your estate attorney at Elville and Associates will protect you as a widow or widower. It’s a challenge to review this during an emotional time, but preparing yourself for the future will provide you peace of mind in the short- and long-term. Discussing your planning with an attorney is the best way to get your specific questions answered, have your attorney understand your situation, and partner with you to help create solutions and a solid path forward for your planning needs.
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For many people with disabilities, maintaining financial well-being can prove particularly challenging amid the marginalization, societal stereotypes, and employment and health care barriers they may regularly face. This includes anything from inaccessible workplaces to reduced income to limited options for building up their savings.
Financial Health of People With Disabilities
According to a new report, those individuals with disabilities who receive benefits from means-tested programs like Supplemental Security Income (SSI) and Medicaid are at the most risk for financial challenges after an emergency.
Compiled by the Harkin Institute, National Disability Institute, and the Financial Health Network, the report surveyed people with disabilities on a variety of factors related to their spending, saving, borrowing, and planning habits to calculate their financial resilience.
The findings reveal that only 10 percent of people of working age in the disability community are financially healthy today. Meanwhile, a third of working-age people with disabilities are categorized as financially vulnerable, compared with 12 percent of people of working age without disabilities. These individuals may have significant debt and little or no emergency savings, and may often be living paycheck to paycheck.
When it comes to long-term savings, the report highlights ABLE accounts as one viable option for many people with disabilities who receive government means-tested benefits. Yet the researchers find that awareness of the benefits of these accounts among individuals with disabilities is severely lacking.
What Is an ABLE Account?
ABLE accounts are a type of savings account that allows qualifying people with disabilities to save $17,000 a year (in 2023), tax-free, without losing their eligibility for public benefits. An ABLE account helps beneficiaries of means-tested programs like SSI circumvent the strict asset and income requirements, allowing them to save up to $100,000 without penalty.
The money in this type of account can be used for the account holder’s benefit. Money held in an ABLE account can pay for such expenses as the following:
- Basic living expenses
- Education
- Housing expenses
- Transportation services
- Education and training
- Assistive technology
In addition to the ability to place money aside without losing benefits, the purpose of an ABLE account is to create a safety net that can reduce a beneficiary’s stress regarding their finances.
What Are the Qualifications for an ABLE Account in 2023?
As of 2023, these are the ABLE account requirements:
- The account holder must have been disabled before they turned 26 years old.
- The individual must either already be receiving benefits under SSI or SSDI, or they must have a letter of certification from a licensed physician stating that they meet the SSA’s criteria regarding significant functional limitations.
Note that in January 2026, the age limit will be extended. At that time, to be eligible for an ABLE account, beneficiaries will have to prove that their disability began before the age of 46.
Continued Financial Hardship May Create Another Barrier for Eligible Account Holders
Despite the benefits of using ABLE accounts, there are downsides that can keep people across the disability community from achieving financial health, according to the report.
ABLE accounts require a minimum balance and sometimes an annual fee, which may create a barrier to financial health for otherwise eligible participants. Many individuals have a hard time putting enough money aside to start utilizing an ABLE account. Being unable to contribute consistently poses a risk that their ABLE account will fall below the required minimum balance.
While anyone can contribute to an individual’s ABLE account, many families have trouble putting together enough money to take full advantage of their ABLE account.
Most People Eligible for an ABLE Account Are Unaware of the Service
Despite its benefits, many people who are eligible for an ABLE account do not know that these accounts exist. Findings from the report uncover the following:
- In 2022, only 120,000 of the estimated 8 million nationwide eligible beneficiaries have opened an ABLE account.
- Less than one percent of the eligible disabled survey participants had an ABLE account, all of whom had less than $10,000 in their accounts.
- 93 percent of survey respondents said they were unfamiliar with ABLE accounts.
In addition, the report states, “ABLE accounts also remain unfamiliar to many service providers who serve people with disabilities and could provide a critical link to helping provide access.”
To learn more about how to set up an ABLE account, consult with the special needs planning attorneys at Elville and Associates. To visit the Maryland ABLE account website, please visit https://www.marylandable.org/. ABLE accounts are also an integral part of an overall plan for your loved one with disabilities and work in concert with a supplemental/special needs trust. To discuss your loved one’s future with your special needs planning attorney at Elville and Associates, please visit here.
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For the one in five families who care for children with special needs, estate planning is crucial.
Parents of a child with a disability face numerous challenges and concerns. One 2022 study found that getting sick stands among these parents’ biggest worries. about what will happen to their children if they get sick. They wonder what will happen to their children if they can no longer provide their care and support. Another survey revealed that 69 percent of special needs families expressed fear about providing lifetime assistance to their disabled dependents.
Creating a will and other important estate planning documents are among the steps you can take to help alleviate these concerns. A well-drafted estate plan can help ensure that your loved one with special needs has financial protection and continued support.
Barriers to Estate Planning
Creating a will is an integral part of planning for the future. Yet two out of three Americans have no will or estate planning document, according to Caring.com’s 2023 Wills and Estate Planning Survey.
Some respondents to this survey reported that they do not have enough assets to leave behind. Others cited procrastination as the reason for avoiding estate planning. Still others expressed confusion about how to create a will.
Don’t Delay Making a Will
Forty-one percent of survey participants indicated that they would delay creating a will until they experienced a health diagnosis or concern. However, you may be putting your loved one with special needs at great risk if you delay creating a will.
Avoid waiting until your health, or the health of your loved one with special needs, worsens. Having a will and estate plan in place ahead of time can make navigating health challenges easier. If you prepare for the future, you won’t have to rush to make arrangements or risk passing away without a will.
Power of Attorney
As part of your estate plan, you also execute a power of attorney (POA). This legal document allows you to designate someone to make decisions for you if you cannot do so.
You may, for example, become unable to handle your own affairs due to unexpected circumstances, such as serious illness or injury. In this case, the individual you named in the power of attorney may have to step in. They might manage financial support for your loved one with disabilities, making financial transactions on your behalf. You would therefore want to appoint someone you trust implicitly to serve in this role.
For someone with a disability, having a power of attorney in place can help preserve their autonomy. Imagine that you face an adverse health event and there is no power of attorney in place. The court may need to appoint a guardian to make decisions for your loved one.
Note that individuals with medical needs can also name a health care power of attorney. This appointee is someone who can represent their best interests when it comes to medical care.
Guardianship: Selecting Someone to Care for Your Child
In addition to creating a will, you also may wish to name someone to become your child’s guardian. You can determine who will care for your child and ensure that your child’s guardian is someone you trust.
Special Needs Trust
While a will is a basic estate planning document that can help you provide for your loved one with special needs after you pass, a trust can also protect their assets. Designing a special needs trust includes appointing a responsible individual to act as the trustee.
The trust can pay for things public benefits do not cover, such as recreation and education. At the same time, a trust preserves your loved one’s ability to qualify for public benefits. Setting up a special needs trust can also ensure that they receive continued support during their lifetime.
Contact Your Attorney
Take steps toward securing your loved one’s future. It’s important to consult with an attorney who has experience in estate planning and special needs law, such as the attorneys at Elville and Associates, led by Managing Principal and Lead Attorney Stephen Elville. As opposed to an attorney that does not maintain a focus in these areas, they can help you determine the best option for your family’s future specific needs and situation.
In addition to helping you create a will, the attorneys at Elville and Associates can assist you with making a comprehensive estate plan. This could include executing power of attorney documents and setting up a special needs trust for your loved one. Provide for your family’s future success by speaking to the attorneys at Elville and Associates. With their expertise, you can begin your proactive planning.
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Parents of an adult child with disabilities know that their child’s disability needs may change over the course of their lifetime. Planning for the future well-being of an adult child with disabilities is, therefore, a responsive, ongoing process.
The life expectancy of many adults with disabilities has increased over time. For example, according to research, life expectancy for adults with Down Syndrome rose from 25 in 1983 to 60 in 2020. Those with cerebral palsy, the most common motor disability of U.S. children, may often live into their 50s.
The ever-increasing life expectancies of people with disabilities mean that comprehensive special needs planning requires short- and long-term planning. The following five elements are key to laying the foundation to ensure a successful support system for your adult child:
- A Long-term Vision for the Future
- Living Arrangements
- Government Resources
- Private Financial Resources
- Legal Needs: Special Needs Planning Attorneys
A Long-term Vision for the Future
How do you envision your adult child with disabilities life after you’re gone? As you define and refine your vision to the extent possible, you should involve your child in the process. It’s important to focus on the strengths and abilities of the adult child, not just the challenges of their disabilities. This involvement helps promote self-esteem and independence to the highest degree possible.
Letter of Intent (LOI)
Although this letter is not a legal document, it provides important information about your child’s routines, preferences, and wishes. The LOI can and should be extremely detailed, including comprehensive medical information. It also may identify caregivers, providers, and others in your child’s life who serve as part of their support system. Reviewing and updating the letter at least every two years or when significant changes occur is good practice.
Supported Decision-Making
If your adult child with disabilities is capable and in charge of decision-making, selecting a team of trusted advisors is still important. This team may include family members, professionals, friends, and community services who all participate in your adult child’s success. The National Resource Center for Supported Decision-Making has information about the right to make choices by state. Elville and Associates’ Managing Principal and Lead Attorney Stephen Elville’s article about supported decision-making lays a very good foundation for understanding this law that was recently enacted in Maryland. You can read his article here. The firm’s recent webinar about supported decision-making, part of its ongoing educational Elville Webinar Series, can be viewed here.
Living Arrangements
Where your adult child will live depends on several factors, including their disability type and available financial resources. If your child currently lives in your home, don’t wait until you die to have them move into and experience a new home. Moving can be a tough experience while you are alive but catastrophic when you are gone.
Housing for an Adult Child with Disabilities
- Your home – It’s great if you can leave your residence to your child in a special needs trust. Just be sure the trust also contains enough money to cover ongoing property maintenance, taxes, and other costs.
- Another home – You might purchase a townhouse or condo for your child and hold the property in a special needs trust.
- Section 8 vouchers – This federal program provides housing in the community to low-income people; however, wait lists can be long.
- Group homes – An adult child with disabilities can use private money or Medicaid payments to live in a group home. In some cases, this living situation also has counselors and other staff that can help residents live as independently as possible.
- If assisted living is a requirement, a special needs attorney can help identify options.
Government Resources
Creating an outline of the individuals, services, and organizations that have become your adult child’s support system and how they are financed makes your vision for your child a reality.
Public Assistance Programs
When navigating government assistance resources, it’s wise to involve a special needs attorney. They can explain how to manage assets properly to preserve your child’s access to crucial government programs.
A person with developmental disabilities can often access the Supplemental Security Income (SSI) program. SSI guarantees a minimum income to qualifying low-income recipients. A representative payee can assist those individuals who are unable to manage their finances.
To be eligible for Medicaid benefits, the recipient must have limited income and assets. (The limitations apply to assets not protected by ABLE or Special Needs Trust accounts.) Medicaid covers a broad range of health care costs.
Maintaining eligibility standards and managing these benefits may be more than your adult child with disabilities can manage. You may consider identifying a reliable candidate to assist your child. It is also essential to create the structure that legally permits this designee to facilitate your child’s access to such programs.
Many US military personnel have experienced serious physical and mental health problems. A large percentage of these service members are unmarried and under 30. For parents of veterans with disabilities, look into the Veterans Disability Compensation program.
There is also a benefits program for veterans with permanent disabilities, which is needs-based. The Veterans Disability Pension has eligibility requirements based on your adult child’s assets and income. A veterans specialist or disability attorney can create a special needs trust to ensure your adult child can qualify.
Many other government programs are available to help your adult child with disabilities secure a successful future. A special needs attorney can explain more about discrimination protections outlined in the Americans with Disabilities Act (ADA), the Affordable Care Act (ACA), the Ticket to Work Program, and more.
Private Financial Resources
Create a realistic strategy to ensure your adult child’s safety and success when you are no longer alive Begin by creating a general framework with a special needs planning lawyer and then fill in the financial details.
Financial resources may include life insurance policies and other investment strategies. For example, consider funding an Achieving a Better Life Experience (ABLE) account. ABLE accounts can help your child continue living a life of safety, purpose, and impact after you are gone. To learn more about Maryland’s ABLE program, please visit https://www.marylandable.org/.
Additionally, the special needs planning attorneys at Elville and Associates can create a special needs trust appropriate for your family’s financial situation and child’s needs. This trust type provides additional monies to your adult child without them losing their ability to qualify for government benefits. There are various special needs trust types, including:
- Third-Party Special or Supplemental Needs Trust (SNT)
- First-Party Special Needs Trust or Self-Settled SNT
Special Needs Attorneys
There are several legal tools that parents can use to create a lifelong plan for their adult child with disabilities, including:
- Guardianship
- Conservatorship
- Special Needs Trusts
- Advance Health Care Directive
- Durable Power of Attorney
It’s important to consult with an attorney who has experience with disability law, such as the attorneys at Elville and Associates, led by Managing Principal and Lead Attorney Stephen Elville. As opposed to an attorney who does not maintain a focus on special needs planning, they can help you determine the best option for your adult child’s future specific needs and situation.
Legal guidance from special needs attorneys is critical; missteps can jeopardize your child’s ability to qualify for crucial government benefits programs. Provide for your child’s future success by speaking to the attorneys at Elville and Associates. With their expertise, you can begin your proactive planning.
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Two Mighty Oaks – Frederick Health Hospice
By: Carlos Graveran – Executive Director – Frederick Health Hospice
I recently made the difficult decision to take down the two majestic 70-foot-tall oak trees in my front yard. While they blocked our view through the front window, it was a difficult decision to make since they were one of my favorite features of the property and shaded our home for so many years. Sadly, they had become diseased, and since they leaned away from each other from a shared base, like a “V”, we feared an unplanned fall would have devastating consequences for anything or anyone within their reach.
I was grateful for the skill and care of the arborist and his crew, who helped us safely through the process; we couldn’t have done it without them. While relieved to see them come down, I honestly didn’t expect to experience the deep sense of loss that came over me. I suddenly had images of my late father and mother flood my mind. Puzzled at first, I quickly understood the connection. They, too had been the mighty oaks in my life.
Perhaps it’s just because I deal with grief and loss as an integral part of my work, but the metaphor resonates with me on many levels. I had no idea who to call for help, I never had a need for that service. It was my neighbor who recommended someone who had helped him in the past. The same was true with the passing of my father. At the time, I had little, if any, personal experience with death and was ill-equipped for it. It was hospice that helped us through it.
Now, after decades of experience as a hospice professional, I can say that the same can be said about most families. People spend more time planning their next vacation than how they want to spend their final days. Conversations about end-of-life are avoided as if just discussing the subject would somehow cause it to occur. Yet, for those who do call hospice and take the time to share their wishes, the experience is far less painful for both the patient and their family.
For more than 43 years, Frederick Health Hospice has provided compassionate care to those approaching end-of-life and their families. When a cure is no longer an option, hospice prioritizes the in-home care and comfort of the patient so he or she can make the most of the time they have remaining. Our hospice focuses on what is possible and most needed. We constantly look for opportunities to improve the individual care of our patients and for ways to leverage our strengths in support of families and our community at large. Programs like Music Therapy, our Veterans Program, extensive bereavement services, and Camp Jamie (grief camp for children and teens) are just a few examples, and all are provided free of charge. Most importantly, no one is ever turned away for inability to pay.
My father was four months shy of his 76th birthday when cancer took him from us. Like all families who have shared the experience, we were left with more questions than answers: regrets and second guesses. We all uttered the refrain we hear most often from our families, “… I wish I had known about hospice sooner.” While he was not in hospice for very long, I can tell you that it was a blessing to our entire family. It allowed us to be his family again, not his caregivers. He received tender care that allowed him to live out his final days in peace and dignity, and we received the emotional and grief support we so desperately needed to carry on without him.
I learned through that experience that grief will always be with me but will not define me. Though painful, it reminds me of his strength and the love I feel for him. Like those fallen trees that shaded me, their absence has altered how I see the landscape of my life. While I can see much farther now, I will always miss my two mighty oaks.
| Mr. Carlos Graveran has more than 30 years of experience in various facets of the healthcare industry. He currently serves as Executive Director of Frederick Health Hospice, a non-profit hospice agency in Frederick, Maryland. Prior to his current appointment in July of 2016, he served as vice president of operations for a national for-profit hospice agency and has held various other leadership positions in the hospice, home health and pharmaceutical industries. He is a passionate advocate for hospice and end-of-life care with demonstrated knowledge of hospice operations, leadership, financial management and strategy development. Mr. Graveran Co-Chairs the Public Policy Committee for the Hospice and Palliative Care Network of Maryland. He serves on the Board of Directors for several charitable organizations and enjoys giving back to the community as a volunteer to children’s charities and veterans causes. When not at work he enjoys spending time with his wife and two children, camping, hiking, hunting and travel. A graduate of the University of Maryland, Carlos is also a very proud U.S. Army veteran (Paratrooper, 82nd Airborne Division). |
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