ElderLaw Answers Blog

Nicholas D. Kristof, in a recent column in The New York Times, “Until Medical Bills Do Us Part,” writes about a friend — “M” – who has been advised to divorce her husband so that she will not be impoverished paying for his anticipated long-term care needs.  She was advised to do this by a social worker at the hospital where her husband’s degenerative condition was diagnosed.

This is a second marriage for both M and her husband and they have a prenuptial agreement, which is irrelevant to issues of Medicaid eligibility.

Kristof decries a medical system that forces people to divorce “not because of irreconciliable differences but because of irreconcilable medical bills.”  We could not agree more.  This is the sad reality of our dysfunctional health care and long-term care system.

Another sad reality of our system and M’s situation, however, is that M has been getting bad legal advice.  First, in  any second  marriage in addition to a prenuptial agreement, clients should be advised to purchase long-term care insurance. 

Second, in terms of divorcing for Medicaid planning purposes, it sounds like M was getting legal advice from social workers rather than elder law attorneys.  Divorce is certainly an option, but it is not the only long-term care planning strategy available to clients.  In more than two decades of practicing elder law, not one of my clients has sought divorce for Medicaid planning purposes. 

Another sad reality of our dysfunctional system, is that citizens need qualified elder law counsel to navigate it relatively unharmed.

As The New York Times describes in a recent article, the litigation over Brooke Astor’s estate and will is far from unique.  Where there’s money, there are people who will use improper means to grab it.  Where someone has dementia or is dependent on others for care and companionship, they may be induced to alter their estate plan. 

Where a family member feels scorned for  being left out of the will or left out socially, she may suspect undue influence where none exists.  It can be psychologically necessary to believe that Mom was tricked rather than accepting that Mom loved you less or that some long term resentments were reflected in the will.

All of this can lead to litigation which can be expensive both financially and emotionally.  In most cases, good lawyering can prevent such litigation, but not always. 

Our firm is involved in a case where a woman left everything equally to her seven children.  There’s no dispute over the finances.  But the mother owned antiques, jewelry and other items of financial and sentimental value.  She left a list saying who should receive what, which is what attorneys advise clients to do, and the executrix worked out a system for distributing what wasn’t on the list.  Yet one daughter is challenging both the list and the system, which has led to considerable expense and delay.

In short, the best laid plans can avoid a lot of problems, but some may be unavoidable.