Does Florida Allow Common Law Marriages?
No, Florida does not recognize common law marriages entered into after January 1, 1968. But if you entered into a common law marriage prior to January 2, 1968, then the marriage might be valid. Additionally, Florida recognizes valid common law marriages from other states that recognize common law marriage. However, common law marriage never applies […]
Do railroad survivor benefits avoid probate?
Yes. Because railroad survivor benefits come from the federal law and not from the estate of the deceased, the benefits are not probated. This means the benefits can be accessed without having to go through a probate court. Railroad survivor benefits stem from the Railroad Retirement Act. That Act is a Federal law meant to […]
Disadvantages of a Lady Bird Deed in Florida
A Florida lady bird deed, also called an enhanced life estate deed, can be a useful estate planning tool. In fact, the lady bird deed is my favorite way to transfer a homestead. It avoids probate without giving up Florida’s homestead protections. But there are also disadvantages to using a lady bird deed, and you […]
The Medicaid Lookback Penalty
Can you give away your assets to qualify for Medicaid? If a disabled individual’s assets are worth too much to qualify for Medicaid long-term care benefits, that disabled individual could simply give away her assets until her asset count is under the Medicaid limit. The disabled individual could, for example, give away assets to close […]
Spending Down Your Assets to Qualify for Medicaid Benefits
A common planning technique for those seeking to avoid triggering the lookback penalty is to spend down assets until the applicant’s assets are under the Medicaid limit.[1] Spend down plans exploit the fact that the lookback penalty is not triggered if fair market value is received in return.[2] Thus, if the applicant spends her assets […]
First-Party Special Needs Trusts
A first-party special needs trust is a special needs trusts created with the assets of the person applying for government benefits.[1] When properly drafted and funded in accordance with the statutory rules, these trusts reduce the countable resources or income available to the applicant. Anything properly transferred to these trusts will not trigger the lookback […]
Supplemental Needs Trust
Third-party special needs trusts are trusts funded with assets that the government benefits applicant had no legal right to at the time the trust was funded. Thus, the applicant cannot create a third-party special needs trust; rather, a third party must do that. Third-party special needs trusts are typically created as a receptacle for third-party […]
The Qualifying Special Needs Trust
In Florida, one spouse generally may not disinherit the other. The surviving spouse is entitled to an elective share of thirty percent of the elective estate.[1] However, this rule becomes problematic when the surviving spouse receives Medicaid benefits. The recipient of Medicaid benefits is considered to have an ownership interest in anything the recipient becomes […]
Should a Spendthrift Clause be Included in a Special Needs Trust?
A spendthrift clause “restrains both voluntary and involuntary transfer of a beneficiary’s interest.”[1] Simply put, a spendthrift clause protects the assets of a trust from both creditors and the beneficiaries of the trust. This can be especially useful for a disabled or aged individuals, who might be vulnerable to manipulative relatives, predatory creditors, or conmen. […]
The Sole Benefit Rule: A Requirement for First-Party Special Needs Trusts
First-party special needs trusts are irrevocable trusts funded with assets belonging to the individual receiving government benefits. However, transfers to irrevocable trusts normally result in a lookback penalty because the transfer is considered to be for less than fair market value.[1] So how does one fund a first-party trust without triggering the lookback penalty? The answer […]