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Your Estate Planning Questions Answered: Must IRA be spent down to qualify for Medicaid?

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By Harry S. Margolis

For Capital Region Independent Media

Harry S. Margolis

Editor’s Note: We are pleased to bring our readers a new column, “Your Estate Planning Questions Answered” by Harry S. Margolis. We hope you enjoy the column.

QUESTION:

My ex-husband is 61 and has dementia. I am his agent under his durable power of attorney. He was in assisted living but currently is in a rehab bed in a nursing home where I will most likely apply for him to stay. He gets SSDI and a monthly distribution from his IRA. Both together will not cover the nursing home.

Since the IRA is already in distribution, is it protected? Do I have to change the withdrawal amount to fully pay the monthly charge? We live in New York.

RESPONSE:

This is a question of the Medicaid rules in your state. Medicaid will begin to pick up the cost of your husband’s nursing home care once his countable assets have been spent down to $2,000. So, the question is whether his IRA is considered to be “countable.”

The answer depends on the state and whether the IRA is in “payout” status. There are three categories of rules. In some states, all IRAs and 401(k) plans are countable and must be spent down. In others, they are all exempt and do not need to be spent down. And in the third, they are exempt if they are in payout status.

The American Council on Aging provides a table of the different state rules here: https://www.medicaidplanningassistance.org/medicaid-eligibility-401k-ira/. It indicates that in New York your ex-husband’s IRA is not countable as long as it is in payout status.

But that brings us to the next question as to what is meant by “payout status.” You say that your husband’s IRA is “in distribution.” However, under current law he doesn’t have to begin taking required minimum distributions (RMDs) until age 72. His decision, or your decision on his behalf, to begin withdrawing funds from the IRA now is purely voluntary. As a result, in your husband’s case his IRA is countable and must be spent down.

While your husband’s age renders his IRA a countable asset, it opens up another planning opportunity for him. Medicaid law allows disabled individuals under the age of 65 to shelter assets in special needs trusts for their own benefit. These are generally referred to as (d)(4)(A) or (d)(4)(C) trusts referencing the federal statute that authorizes this safe harbor. (In some states, individuals aged 65 or older can still transfer assets to (d)(4)(C) trusts but not (d)(4)(A trusts.)

If you transfer your husband’s IRA into one of these trusts, he can qualify for Medicaid and the funds in trust will still be available to pay for anything he may need that’s not covered by Medicaid.

The main difference between the two types of trusts is that (d)(4)(A) trusts are individual trusts for a single beneficiary while (d)(4)(C) trusts are pooled trusts managed by not-for-profit organizations for many beneficiaries. If you choose to a (d)(4)(A) trust for your ex-husband and serve as trustee, you will have to hire a special needs planning attorney to draft it and you will have to continue managing the funds, including filing an annual income tax return for the trust.

If, instead, you go the (d)(4)(C) trust route, you will need to locate the appropriate trust for your husband, but once the trust is funded the non-profit will manage it. This will mean less work for you, but also less control over how the funds are spent on your ex-husband’s behalf. The Academy of Special Needs Planners provides a comprehensive directory of (d)(4)(C) trusts here: https://specialneedsanswers.com/pooled-trust

Finally, you should be aware that you cannot simply transfer an IRA into trust. Rather, you will have to withdraw the funds from the IRA and transfer the proceeds to the trust. This will be a taxable event with the entire withdrawal considered to be taxable income to your husband. The amount of taxes due will depend on the amount withdrawn, your husband’s income tax rate, and whether he has deductions that might offset the resulting income. For instance, any payments to the nursing home are deductible as medical expenses. In any case, the trust funds will be available to pay any tax due.

Harry S. Margolis practices elder law, estate and special needs planning at Margolis Bloom & D’Agostino in Wellesley, Massachusetts, and a Fellow of FreeWill.com. He is author of “The Baby Boomers Guide to Trusts: Your All-Purpose Estate Planning Tooland answers consumer questions about estate planning issues at www.AskHarry.info. Please post your estate planning questions there.

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