Elder Divorce or Probate Matters in Los Angeles and throughout California
Probate is the official way that an estate gets settled under the supervision of the court. Typically, a family member is appointed by the court if there is no Will, or is nominated by the deceased in their Will if one so exists, to serve as executor of the estate. Once appointed, this person is tasked with the duty to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries.
The purpose of probate is to prevent fraud after someone's death. Unfortunately, inheritance matters can bring out the worst in an individual and family quarrels over the estate of a deceased loved one are all too common. Sometimes, unfortunately, people who had “relationships” with the deceased are wrongfully ignored or they make false claims against the estate. Primarily probate seeks to ensure the wishes of the deceased in regard to the division of their estate are rightfully carried out, and in the event the specific wishes of the deceased were not expressed in writing, probate ensures the estate is divided and disbursed in a manner that is fair under the law. The Law Offices of Robert J. Nachshin have experience working with trustees and families to resolve probate disputes involving community property and palimony issues.
Not all estates are subject to probate, however. California has a threshold for what they consider to be a “small estate” and is exempt from probate. Also, there are certain assets that by law pass automatically to another such as joint tenancy—these types of assets are exempt from probate.
“GRAY DIVORCE” MATTERS
In recent years, there has been a significant rise in divorces amongst persons in their 50s, 60s, and 70s, commonly referred to as “gray divorce”. In part, this could be attributed to the fact that divorcees today, unlike the generations before them, are no longer treated as social piranhas. Couples in their 50s and beyond may choose to divorce later in life for the same reasons younger couples decide to divorce such as infidelity or simply growing apart emotionally. However, statistics show that a growing trend in gray divorce is that elder couples are considering divorce for practical reasons as well—reasons having nothing to do with their romantical or marital relationship. In fact, it is not uncommon for the romantical relationship to continue following the gray divorce. Two common practical reasons for divorce that are more or less unique to gray divorces have to do with health care benefits and the protection of assets.
Modern aging has come to be defined as longer life spans but with that comes chronic medical care needs which can be quite expensive. For instance, in 2014 the average annual cost of a semi-private room in a skilled nursing facility was $83,114—an amount that far surpasses what the average retired individual could afford. To cover these exorbitant expenses, many Americans turn to the Medicaid Long-Term Care benefit which can pay for the room and board or home health care services of qualifying individuals.
In order to be eligible for the Medicaid Long-Term Care benefit the individual has to meet general criteria concerning age and medical necessity and strict financial criteria concerning income determined by the federal poverty guidelines (i.e., in 2012, an individual’s qualifying income was capped at $931/month) and assets such as financial accounts, stocks and bonds, and real property, etc. However, individuals are able to “spend down” their income and assets in order to eventually be poor enough to qualify. Married couples are also subject to a $3,000 cap on assets.
While the benefits offered by the program provide the elderly and chronically ill with much needed long-term care services that would otherwise be out of their reach financially, the strict eligibility criteria implicitly encourage divorce which is why gray divorce is also sometimes referred to as “Medicaid Divorce”. The effect of the rules of eligibility ultimately make it so a couples combined assets are only protected if the Medicaid recipient does not live with his or her spouse. Medicaid divorce has long been recognized as a creative legal option for avoiding the five-year look back period for Medicaid eligibility and other difficult-to-meet criterium. By divorcing, a couple could continue to cohabitate while still protecting the income and assets of the spouse not receiving Medicaid home health benefits.
Whether divorcing for practical reasons as discussed above, or more traditional reasons such as irreconcilable differences, divorce is a difficult process to navigate. If divorce is something you are considering don’t hesitate to call the Law Offices of Robert J. Nachshin, P.C. for some guidance and advisement.