Even if Mary is otherwise financially eligible for Medicaid, she will be subject to a penalty period based on the value of her previously waived elective share. If the elective share is valued at $100,000, this figure will be divided by $10,957, resulting in 9.13. Mary is then ineligible for nursing home Medicaid for 9.13 months.
This harsh result occurs under current law because the imputed transfer is dated not from the date that the waiver was executed (January 2008) but from the date of death of the spouse (December 2012).
Several elder law practitioners have pointed out that this result is unfair because although a numerical value cannot be placed on the elective share until the spouse's date of death, the transfer should be dated when the waiver was signed because this is the date the surviving spouse irrevocably parted with her property rights in the elective share.
New York State Assembly Bill No. A.2013, sponsored by David Weprin, would remedy this situation. The bill previously passed unanimously in the Assembly and is awaiting Senate sponsorship.
The exercise and waiver of a client's right to elect against his or her spouse's estate has the potential for unintended consequences in the long-term care and elder law arenas. Unless or until this is remedied through legislation those embarking upon second marriages may wish to add long-term care insurance to their wedding registries.
Ann Margaret Carrozza is a practicing elder law and trusts and estates attorney. She previously served as a New York State Assemblywoman.