Planning for a Special Needs Dependent? Start with This Trust

Special Needs Trusts: How to Protect Benefits and Inheritances

Introduction

Special needs trusts can play a critical role in estate planning for families with loved ones who rely on Medicaid, Supplemental Security Income (SSI) or other means-tested government benefits. Without proper planning, a direct inheritance may unintentionally jeopardize access to those programs.

What Changed and Why It Matters

Families often assume the simplest estate-planning solution is to leave money directly to a child or loved one. But when that beneficiary relies on Medicaid, Supplemental Security Income (SSI), public housing or other government assistance programs, a direct inheritance can create an expensive problem.

Harry Margolis, author of Get Your Ducks in a Row, said a properly structured special needs trust can allow beneficiaries to retain eligibility for public benefits while still receiving financial support from family assets.

An outright inheritance, by contrast, can jeopardize access to those benefits.

What This Means for You

If you have a loved one receiving Medicaid, SSI or other means-tested benefits, review how assets will pass at death.

A direct inheritance could affect benefit eligibility.

A properly drafted special needs trust may help preserve access to public programs while providing financial support.

Special Needs Trusts Can Preserve Eligibility for Benefits

Margolis described a special needs trust as a trust designed to hold assets for a beneficiary without having those assets counted against eligibility for certain public-benefit programs.

“If you leave it to them outright, they may lose their benefits, which in some cases can be catastrophic,” Margolis said.

A trust can also provide oversight when a beneficiary may not be able to manage assets independently.

Different Trusts Follow Different Rules

Margolis said there are two primary categories of special needs trusts:

Third-party trusts

Self-settled trusts

Third-party trusts are funded by someone other than the beneficiary, usually a parent or grandparent.

Self-settled trusts are funded with the beneficiary’s own assets.

For third-party trusts, the beneficiary generally should not serve as trustee, and distributions should remain discretionary.

Mandatory distributions can cause trust assets to be counted when determining eligibility for benefits.

“The key is discretionary,” Margolis explained.

Self-Settled Trusts Can Provide a Safe Harbor

Margolis said Congress created an exception known as a D4A trust, often called a payback trust.

These trusts allow individuals to place their own assets into trust while potentially preserving eligibility for Medicaid and other programs.

To qualify, the trust generally must be established before the beneficiary reaches age 65 and must include a provision requiring reimbursement to Medicaid from any assets remaining at death.

“You get the benefit of Medicaid and SSI and subsidized housing or food stamps, all any public benefit during your life. It’s just if funds remain at death, they’re subject to claim.”

Choosing the Right Trustee Matters

One of the biggest challenges, according to Margolis, is selecting a trustee.

Families often struggle to decide whether a sibling, parent, bank, trust company or professional fiduciary should manage the trust.

His preferred approach often involves co-trustees.

A family member brings personal knowledge of the beneficiary, while a professional trustee can oversee accounting, taxes and compliance with public-benefit rules.

Pooled Trusts Offer Another Option

For families without an obvious trustee candidate, Margolis pointed to pooled trusts, sometimes called D4C trusts.

These arrangements are administered by nonprofit organizations that manage separate accounts for multiple beneficiaries.

The nonprofit serves as trustee and typically has experience administering disability-related benefits.

Margolis said pooled trusts can be particularly useful for smaller trusts where finding a suitable trustee may be difficult.

Many Trusts Are Funded After Death

Margolis noted that many third-party special needs trusts are not funded until the death of a parent or grandparent.

That allows families to continue supporting a loved one during life while ensuring a structure is in place to receive inherited assets later.

Key Takeaways

Leaving assets outright to a loved one with disabilities can jeopardize public benefits.

Special needs trusts are designed to preserve eligibility for programs such as Medicaid and SSI.

Third-party trusts and self-settled trusts follow different rules.

D4A trusts allow beneficiaries to use their own assets while maintaining eligibility, subject to Medicaid repayment provisions.

Trustee selection is one of the most important decisions families will make.