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Don’t Forget About the Elective Share

Jim’s dad had  recently died leaving him to care for his mom.  His dad knew that Jim would need to place his mom in a facility.  She could not longer be cared for at home.  He wanted to provide for that care but he also wanted to leave Jim an inheritance.

Dad went to an attorney to update his will.  He left his entire estate to Jim, thinking that Jim would be able to pay for what Mom needed but also be able to qualify for Medicaid.  

One thing he forgot about is something called the elective share which I’ve written about previously in this blog.  The elective share is a statute that provides a  surviving spouse with a minimum amount of a deceased spouse’s estate even if, as in Jim’s dad’s case, he leaves nothing to his spouse.  In  New  Jersey the  elective share is one third of the deceased spouse’s augmented estate less what the  surviving spouse already has.

Jim’s  mom has nothing to her name.  Everything was transferred to his dad’s name.  This means that his mom is entitled to one third of his dad’s estate.  Jim told me he had negotiated to pay a nursing facility for 8 months and then apply for Medicaid.  He estimated this to be about $100,000.

I asked him how much his dad had left him.  He told me it’s about $450,000.  I then explained that he would probably need to pay approximately $150,000 before his mom could be eligible for Medicaid.  How much exactly I couldn’t say without more information.  Next week I’ll explain why.