Asset Protection from Spouse’s Medical Expenses

Protect Your Assets: Question and Answer with Patricia M. Annino, Esquire

Question:  I am a 73 year old widow marrying a 78 year old widower. Both our spouses died after lengthy and costly battle with Alzheimer’s. We both have children and would like the assets we bring to the marriage to pass down to our respective children-not be used for the other spouse’s chronic medical care. What can we do to prevent our assets from being used in that way?

Answer:

Spouses are obligated to support each other. It does not matter if you are married three days or 50 years. If one of you has serious medical costs law and public policy mandate that you have an obligation to support your spouse. You should consider purchasing long term care insurance to cushion the blow of any long term care expense. As you know an annual stay in a nursing home can range from $70,000 to $100,000 per person. At home care is also very expensive.

You should also consider executing a prenuptial agreement which mandates that if either of you incurs medical expenses then your income and your assets must be used in full (to the extent of depletion) before your spouse’s assets are touched. Putting that intent in writing and agreeing to it could be a useful document for your spouse to show your children if you become ill and your spouse begins to deplete all of your assets and not his on your care.

In a second marriage situation where the concern is health issues it is also important to execute health care proxies in which you name your spouse as your health care agent and you give your spouse the legal authority with a durable power of attorney to access your assets to pay for your care. If you do not put those legal documents in place your heirs-at-law (spouse and adult children) all have the right to be heard on who should be in charge of your medical decisions and your financial decisions.

It is your responsibility to put this in place now so that everyone understands their roles and responsibilities.

Patricia M. Annino, Esquire, is the author of the highly acclaimed book, Cracking the $$ Code: What Successful Men Know And You Don’t (Yet). Patricia is in demand nationally as a speaker for womens’ organizations on assorted topics.  Patricia works with organizations and women looking to educate and empower them to plan and work smarter with their finances and estates.  For more information visit:  www.patriciaannino.com

Comments

  1. This is all true, as far as it goes, and if you wish to retain control of your assets until your death; however, if you’re willing to relinquish that control, you do have some other options.

    First, if you wish to ensure that certain assets cannot be used for your new spouse’s medical care expenses, you can simply gift them to your children now. They no longer belong to you, thus they cannot be claimed by creditors. The disadvantage is that they are also not available to be used for YOUR medical care if that becomes necessary, unless your children are willing to pay part of your expenses.

    A second possibility is to place the assets in a trust for your children, with the income from that trust coming to you during your life. This would require advice from an experienced trust attorney, who can advise you on things like whether the trust could be revoked to pay for your own medical expenses and whether creditors could force the trust to be used to pay spousal obligations.

    Each person’s circumstances are different, and you need the advice of a good estate lawyer to fully explore the various options.

    • Hi, Wendy – Thanks so much for your comments. While some of what you say is accurate, gifting does not necessarily remove them from the reach of the spouse’s medical care – there are look back periods for gifts- even gifts to your own children. Consulting with an experienced trust and estate attorney is critical.

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