The idea of using Special Needs Trusts in Medicaid planning for Seniors is not a new one, but it has been a frustrating area of the law for many years. Special Needs Trusts created under the OBRA-93 laws are specifically designed to be used for the benefit of disabled individuals under the age of 65.

To date, there is no Federal law that permits the use of OBRA-93 Special Needs Trusts for Senior Citizens.

Some States have adopted Statutes that allow for the limited use of Federally-recognized “Income Trusts” (sometimes called “Miller Trusts”) or Cooperative Master (“Pooled”) Trusts for persons over the age of 65.

These laws vary from State to State. They affect and are affected by each State’s individual Medicaid Program rules and Probate laws. Very few States have gone further in creating laws to assist the elderly.

Fortunately for Florida’s senior citizens, the Florida Legislature has enacted one of the most flexible and “friendly” laws in the country to assist its large population of needy and disabled elderly. This law allows for the creation of  what the Legislature named “Qualifying Special Needs Trusts.” 

Under Florida Statute Section 732.2025 (8),  a “Qualifying Special Needs Trust” (or “Qualifying Supplemental Needs Trust”) is a trust established for a disabled surviving spouse.  Some of the requirements of such a trust are:

  • The trust can be created either before or after the decedent’s death.
  • The income and principal are distributable to or for the benefit of the surviving spouse for life.
  • The money in the Trust cannot be used for anyone other than the surviving spouse.

Your family member must be a resident of Florida to qualify for this type of Special Needs Trust. There are certain restrictions about who may serve as a trustee, and in some cases Court approval may be required. This type of trust can be designed to protect a Senior’s right to their benefits and entitlements. 

For more information please feel free to call or email us.