Archive for the ‘Estate Planning New York’ Category

Medicaid recovery in NY: Where are we?

Several months ago we blogged about New York’s emergency regulations which expanded the definition of “estate” for Medicaid recovery purposes. These regulations, allowing recovery from interests such as jointly held assets and life estate interests, enhanced Medicaid’s ability to recover its costs from a decedent’s estate.

The emergency regulations expanding the definition of “estate” expired last fall.  New York law referring to this expanded definition of “estate” is still in place without regulations to clarify what the new definition is.

We are hearing two possible alternatives going forward. The first is that final regulations will be issued effective for Medicaid recipients dying after July 1, 2012. These would be similar to the emergency regulations that have expired with some changes. The second alternative which we think is more likely is the elimination of the law expanding the definition of “estate” and going back to the original law. This would mean that for Medicaid recovery purposes, only assets passing from the decedent pursuant to a court process (probate or administration) would be available for recovery.

We will keep you posted as we know more about New York’s attempt to expand estate recovery.

A Retained Life Estate May No Longer Avoid Medicaid Recovery

A retained life estate is itemized in new Medicaid law and regulations as a type of non-probate asset now included in the definition of “estate” for Medicaid recovery purposes. Therefore, a deceased Medicaid recipient’s interest in a retained life estate may now be available for Medicaid recovery on the death of the Medicaid recipient.

The potential recovery of this interest was not anticipated when many parents even years ago transferred their home by deed to a child or children and retained a life estate.  We expect that Medicaid’s legal right to recover from a life estate interest will be challenged in court in the near future. However, we do not know what the results of that litigation might be and as of now the retained life interest is a recoverable asset.

The owner of a retained life estate may have options available to protect the life estate interest.  This will depend upon the individual’s particular situation.

Planning for the Married Same-sex Couple

New rights and benefits are now afforded same-sex couples with the recognition in New York of same-sex marriage as of June 24, 2011. However, because at this time the federal government and most other states do not recognize same-sex marriage, there are legal issues affecting same-sex couples they need to be aware of such as the following:

  1. Their New York income tax return will be filed as married but their federal income tax return will be filed as individuals;
  2. The survivor is not entitled to Social Security death benefits;
  3. The value of a partner’s health insurance coverage will be taxed at the federal level as income to the employee.
  4. States not recognizing same-sex marriage will not recognize the New York marriage;
  5. A child born to one partner will not be considered the child of the other partner in the non-recognition states and at the federal level unless there has been an adoption by the second partner.

Same-sex couples should seek advice on these and other matters in order to plan appropriately.

Super Lawyer 2010

I have just returned from a New York State Bar Association Elder Law Section Meeting where I addressed Section Members on the newest developments regarding surrogate health care decision-making. This happened to roughly coincide with the publication of the Top 50 Women SuperLawyers List, and many of my colleagues at the meeting congratulated me for making the list.  I feel honored, though I have to say it is an unusual feeling to be publicly acknowledged in this way.  Our firm works hard to help people with their problems, so it’s a funny thing  when word gets around!

It has been a great year for our firm, Raskin & Makofsky, because  both my partner Judy Raskin and I were named to the SuperLawyers List in the Elder Law category. We are very proud to have both firm partners named and to be two of the twenty nine listed Elder Law attorneys in the New York Metropolitan area. The SuperLawyers List, which begins with nomination by one’s peers and factors in credentials, experience, and awards, represents the top five percent of lawyers in New York State. That must also mean that our clients are in the top five percent as well, doesn’t it?

Beneficiary Designations Can be Tricky

We often name beneficiaries on different funds including retirement accounts, insurance policies, bank accounts, brokerage accounts. It is very important to properly designate the beneficiaries on these accounts in order to assure they will ultimately go to the intended beneficiaries.

For example, bank accounts with beneficiaries are called Totten Trusts. If the account owner of a Totten Trust dies with two named beneficiaries on the account, one of whom predeceased the account owner, the result is that one half of the account will go to the surviving beneficiary and the other half will fall into the account owner’s estate. If the account had been set up with the beneficiaries names as joint with right of survivorship, then the full account on the account owner’s death would pass to the surviving beneficiary.

Beneficiary designation forms provided by insurance companies and brokerage firms must be read very carefully.  The account owner may inadvertently indicate  beneficiaries in a way that was never intended. These forms may have default provisions which may take over if the account owner did not sufficiently or clearly indicated how the account is to be distributed.

All beneficiary designations should take into consideration the owner’s estate plan to be sure that these designations will not unintentionally supersede plans created in a will or trust.

It is very important to give careful consideration to naming beneficiaries, and when unsure of the proper way to accomplish estate objectives, ask for guidance.

Revision to Statutory Power of Attorney in NY

On September 12, 2010, a new Durable Power of Attorney form became effective in New York. Previously the New York Power of Attorney law and statutory form were significantly revised and became effective September 1, 2009. As attorneys began working with the new law it became apparent that there were some problems in the statutory language and the form it set forth that needed correcting.  Legislative changes have altered the law including the statutory form. Anyone signing a Durable Power of Attorney should now use the new form in order to be protected by the statutory provisions governing powers of attorney in New York.

Coping With The Loss of A Spouse

The passing of a beloved spouse is an awful thing.  The emotional loss coupled with the disappearance of the day to day companionship leaves the surviving spouse trying to fill a cavernous space.  In her June 15, 2010 New York Times column, Jane E. Brody  writes of the challenging job a surviving spouse has in making an emotional adjustment to the loss.  I think you will find the column interesting and you can access it at http://www.nytimes.com/2010/06/15/health/15brod.html. Ms. Brody not only addresses the difficulties of the emotional issues surrounding the loss of a spouse but  she concludes her column by remarking on the concerns many widows and widowers have in regard to what will happen as they age and perhaps grow ill and require long-term care. This is a real concern.  One way to assuage these fears is to learn about what the options are in regard to receiving long-term care and how to pay for long-term care.