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Bequests To Disabled Children Should Be In Special Trusts

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MARCH 20, 2000 VOLUME 7, NUMBER 38

Suppose your adult son is disabled and receiving both financial and medical assistance from the government. While you do not consider yourself wealthy, you have worked hard all your life and managed to build a modest estate. If you leave your disabled child his share of your estate he will lose his government benefits, and the money you saved for him will soon be consumed in paying his medical bills and care costs. Is there any way to help your son without disrupting his benefits?

Parents of disabled children face difficult choices when they complete their own estate plans. On one hand it might seem reasonable to simply disinherit the disabled child and rely on the public benefits system to provide for their future needs; the parent’s estate may have a larger beneficial effect if it is distributed to the non-disabled children instead. Parents may also choose to rely on those non-disabled children to help provide for their disabled siblings with some of the money they inherit. Depending on individual family dynamics, disinheritance of the disabled child may seem like the most logical choice.

Most commonly, though, parents of disabled children want to treat all of their children equally—or at least come as close to equal treatment as is possible. In most cases, however, any share of the parent’s estate which will be attributed to the disabled child should be held in a trust that provides only for “luxuries” for that child. Such a trust is sometimes called a “Special Needs” trust, and is established to provide assistance but not interfere with eligibility for continued public benefits like Supplemental Security Income (SSI) and Medicaid (or, in Arizona, AHCCCS or ALTCS).

Though recent changes in federal and state law have made the rules more difficult for some Special Needs trusts, those rules do not affect trusts set up for inheritance purposes. A properly drafted Special Needs trust is allowed to provide additional therapy, entertainment, education, travel, assistance with medical care, companionship and a host of other benefits to make life more comfortable for the disabled child without disrupting SSI or Medicaid eligibility. But such trusts are not automatic—if you fail to plan in advance, your child’s share may result in a loss of SSI income, medical care and even eligibility for group home placement and other assistance.

It is important to get good legal advice before establishing a Special Needs trust. For example: if benefits come solely from Social Security Disability Insurance (SSDI) and the federal Medicare program, a different trust arrangement may be more appropriate. Your attorney needs to be familiar with government programs, and must have complete information before making a recommendation.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.