
Nicholas Kristof wrote an OpEd appearing today in the New York Times that blends remarkably with this the next issue for my series on the needs of folks affected by Alzheimer’s Disease (AD). It discusses Divorce which is an alternative in Estate Planning for AD. I have posted the article in my Archive. You can link to it by clicking on Until Medical Bills Do Us Part The posting that follows comprises the counsel I was given when I considered Divorce as an Alternative.
Bankruption is a word fabrication of mine to describe the act of bankrupting brought about by AD and the laws as they are for the middle class as they pertain to paying the Cost of Care. The potential of that is BANKRUPTION, leaving the AD afflicted sitting pretty because of his/her qualification for Government Aid to pay the bills.
The converse is where it leaves the spouse, not so pretty. The likelihood is in poverty. There will be inadequate funds for her/him to live on. What’s wrong with this picture?
An alternative form of Estate Planning is for the married couple to divorce.
Estate Planning: Divorce an alternative
When divorce is considered it asks the question “Why not?” Transfer it all to your spouse. Have papers prepared and go into Court for a no fault divorce. This is allowed in many states.
Is it feasible? In many cases it is not quite that easy. These are the reasons I was given when we counseled with our attorney when we considered this alternative.
A Judge would not be likely to grant a divorce that left the AD afflicted spouse with nothing. If you told the Judge the reason you were doing it the Judge could not do it. It would be illegal for him/her. It would involve the Court aiding and abetting an attempt at fraud on creditors, namely the State as the potential creditor to be defrauded.
In a STIPULATION AGREEING TO PROPERTY DISTRIBUTION IN THE EVENT THE COURT GRANTS THE DIVORCE, (so called in my State which is in fact a DIVORCE SETTLEMENT AGREEMENT), if one spouse gets more than one half of the combined estate Medical Assistance could exercise the discretion to determine that part more than half that if not all is subject to the five year look back rule and thereby disallow any exemption attempted for that.
There are more complications than just the Judge. If the estate consists of tax deferred deposits (like IRAs) where income tax is payable at the time when amounts are withdrawn in such cases this could apply: If the AD afflicted transfers these sums to anyone including the spouse income tax is payable on the amounts transferred at the time of transfer whether or not they are cashed in are taxed in their entirety and subject to penalty for early withdrawal.
A transfer as part of a divorce would be treated differently. The tax becomes payable by spouse to whom transferred, but only as she/he takes the sums out of the IRA portions that the divorce decree transfers.
If the spouse owning the deferred income account dies and the transfer then occurs to the surviving spouse the deferred tax treatment remains as it would in the divorce transfer and he/she pays the tax when sums are actually drawn out.
There are also more complications which need length to explain so I will not make that attempt. See your Lawyer before considering this.
If the settlement agreement could be finessed (slipped) by a Judge the judgment obtained thereby would be vulnerable to being set aside retrospectively. The impropriety of the finesse could make it what the law calls rebuttable, namely capable of being attacked by anyone affected by it.
If it is capable of being attacked this means: Anyone affected by the divorce, such as creditors, children, heirs or the State could appear in Court and ask that the decree be reviewed and set aside because they have suffered loss because of it.
If the Judge reads the agreement giving all to one, as is often the case when a
Judgment is required to be “Proved up Before the Court” its enforcement could easily be denied. The Judge could deem it a fraud as discussed above, If the divorce is granted under the agreement terms it is still vulnerable subject to attack as rebuttable.
If transfers are done outside of the decree Medical Assistance would still have the discretion to determine that all or what part more than half be subject to the five year look back rule and thereby disallow any exemption attempted for that.
These are but some of the pitfalls. I am not an attorney my license ran out as I retired. I have not kept up with the law on these issues. This is based on what I think a lawyer might advise you. Do not rely on this see a Lawyer.








