ElderLaw News-The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News
ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President., William S. Fralin, Esq., President.

Decanting an Irrevocable Trust to Protect Public Benefit Eligibility

Unintended consequences can occur when people fail to consider the effect of a plan on persons with special needs.

Estate planners who are unfamiliar with public benefits may unintentionally create plans that can wreck a beneficiary’s eligibility for SSI, Medicaid and other means-tested public benefits, resulting in a loss of income, healthcare coverage, housing, etc. Most often, this is the result of just failing to plan around a disability, for whatever reason, or attempting to plan around that disability. However, by creating a trust that by its terms provides “support and maintenance” or some other mandatory distribution scheme that makes the trust, in whole or in part, an available resource to the beneficiary, public benefit eligibility can become at risk.

Consider this example. Your mother created a Revocable Living Trust which divides one share of the trust among her then-living grandchildren, to be held in further trust for their benefit until they reach age 30, when they are entitled to an outright distribution of the remaining assets of their separate trust, and distributions are purely discretionary until age 30. When this trust was created, your daughter, who has Down Syndrome, was not yet born and like most people, your mother didn’t think to update her trust as a result of your daughter’s disability. When your mother dies, your daughter is 28 years old, is receiving SSI, lives in her own apartment that is subsidized by Section 8, and receives in-home support which is provided by a Medicaid waiver – she is happy and you know that your daughter’s current benefits and living arrangements provide a plan for her continued independence upon your death, and the loss of those benefits would jeopardize that plan. Your gut tells you that your daughter’s inheritance could be detrimental so you call us, and we inform you that a distribution of the assets at age 30 would cause your daughter to go over the $2,000 asset limit which would result in your daughter’s ineligibility for public benefits. We also explain that since your daughter is not yet 30, that pursuant to Virginia law, the trustee of the trust may exercise a decanting power by assigning trust principal or income to the trustee of a second trust (without the approval of the court or the beneficiaries) and that this second trust may be a special needs trust to protect your daughter’s public benefit eligibility.

The question is whether this new second trust would be considered by the Social Security Administration and Medicaid offices to be a first-party special needs trust subject to a Medicaid payback, or whether this new trust would be considered a third-party supplemental needs trust. The first notable case pertaining to this issue was In the Matter of the Application of Alan D. Kross (N.Y.Surr.Ct. (Nassau Cty.), No. 2012-369907, Sept. 30, 2013). In that case, Daniel Schreiber was the beneficiary of his grandfather’s trust. Pursuant to the terms of the trust, Daniel was entitled to discretionary distributions of income and principal until age 21. Upon the age of 21, Daniel was entitled to mandatory income distributions paid at least quarterly, half of the principal at age 25, half of the remaining principal at age 30, and the balance of the trust assets at age 35. These mandatory distributions would have disrupted Daniel’s eligibility for SSI and Medicaid, so the trustees filed a petition requesting the court to approve the decanting of trust assets into a new third party supplemental needs trust prior to Daniel’s 21st birthday. The court determined, in addition to other things, that because the old trust was a third party trust, the decanting of the trust assets occurred prior to Daniel’s right to receive the mandatory distributions. Therefore, decanting into the third-party supplemental needs trust was proper, and that no Medicaid payback would be required for the new trust. The New York State Department of Heath appealed the decision, which was upheld by Supreme Court of New York, in Matter of Kroll v. New York State Department of Heath.

The breadth of this case’s impact is not yet known. It may be that this case only sets a precedent in New York when a beneficiary has not yet obtained the age to receive the outright distribution, or it may extend to all states and in cases where the distribution standards of the trust cause the trust to be an available resource. Regardless of the impact, those of us that focus on helping persons with special needs now have something we can turn to in considering how the decanting of a trust into a special needs trust may be treated in the future.


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The Estate Planning & Elder Law Firm, P.C.

The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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