disclaiming inheritance, sort of

• August 7, 2024 at 11:09 am #34351
  Jason Files

  Potential client is currently in rehab after a car wreck that injured her severely and killed her husband. Upon release she will need LTC. She will qualify with very little spend down, as she has almost no assets other than a little money in the bank maybe enough to fund a funeral plan). The wrinkle is that her home was owned by her husband (late in life second marriage). He has willed it to his kids. Under state law the potential client, as surviving spouse, could potentially take against the will and assert her right to a life estate in his real property as well as a third of his personal property. If she doesn’t (which she doesn’t intend to) can the failure to pursue a potential claim be treated as gifting away the value? If theoretically possible, what are the odds of the State actually making this argument and disqualifying her?

  August 7, 2024 at 2:08 pm #34353
  Sol Lovas

  Montana routinely monitors community spouse estates, and does treat the failure to claim the elective share and/or any statutory allowances as a penalizable gift to the other takers. Odds – in MT, 100%.

  Sol Lovas
  [email protected]

  August 7, 2024 at 4:26 pm #34354
  C. West

  Same in Alabama.

  August 7, 2024 at 4:33 pm #34355
  Christopher Slates

  Refer to HCFA transmittal 64. This should shed light on all your questions.

  • This reply was modified 1 year, 10 months ago by Christopher Slates.
  October 23, 2024 at 11:46 am #34970
  Richard Winblad

  Wouldn’t the spouse only have a spousal homestead without an ownership interest in the home? In other words, only a right of occupancy without title. At least that is how it works in Oklahoma.

  This post is not legal, tax or investment advice. Reading or responding to this post does not create an attorney/client relationship.