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gavelThis is somewhat correct: I clearly remember reading anomalous cases in law school about concepts like Holographic Wills and whether something as simple as “I leave everything to my wife” is a Will. A gentle reminder: I was reading these stories in a case book, which means these were matters that wound up being litigated. Having a clearly written Will (drafted without ambiguity and following appropriate formalities) helps with the avoidance of legal arguments that wind up in court. Estate litigation can be expensive (emotionally as well as financially) and time consuming as a way to determine who gets what.

You may have read about a recent case from New Jersey where the decedent wrote his own Will on his smart phone. Again, while this does show the ease with which the words can be captured, this case is noteworthy because someone had to opine on it.  What is safest and least likely to produce arguments over your stuff when you die? A precisely drafted Will, duly witnessed and executed.

Further, there are many benefits of working with a team of professionals who can assess your needs and make suggestions, perhaps identifying issues that were not on your radar. For example, many people are unaware of various issues that arise from owning real estate in two states, or the differences between probate and non-probate property. Determining whether a Will or a revocable trust is the best option for you is something that your professionals can help you decide. Coordinating your beneficiary designations with your Will or trust and letting your financial advisors know your plan is all part of a thorough process to make your wishes a reality in an efficient manner. Further, getting advice from a professional can make everything from incapacity planning or charitable giving plan to helping figure out what to do with Fido easier.


Dr with clip boardOver half of the population will require long-term care at some point in their lives.  Paying for long-term care is a topic that many people avoid addressing until the last minute; however, due to the rising costs of skilled nursing care it should really be addressed sooner rather than later.  In Minnesota the average daily cost of care for a skilled nursing facility is $198 per day, or $6023 per month.  This is not an amount that the average person is able to pay on a monthly basis, much less for three years, which is the average duration of long-term care services.

There are many ways to pay for long-term care.  This article shall address the most common payment methods used, as well as provide a basic explanation of Medical Assistance and the asset qualification requirements.  Medical Assistance is a very complex area with constantly changing rules.  Future articles shall address further qualification requirements and rules for receiving Medical Assistance.


The average layperson doesn’t realize that long-term care is not a cost that is covered by Medicare, and usually doesn’t learn this until they or one of their family members enters a skilled nursing facility.  In fact, Medicare only will cover long-term care for up to 100 days if the long-term care stay was preceded by a 3-night stay in a hospital.  The patient must be admitted to the hospital and not just under observation.  Additionally, the patient must be receiving skilled care in a Medicare qualified facility.   Medicare will pay for the first 20 days at 100% and there is a costly co-pay for days 21-100.  Sometimes the patient’s Medicare supplemental insurance will cover the co-pay; however this is not always true.  After the days covered by Medicare have elapsed, the patient and their family must find an alternative pay source.

Private Payment Sources for Long-Term Care


One option for payment of long-term care is to utilize one’s own funds.  Depending on the asset mix of an individual this may be the only option for a period of time.  For example, if the nursing home patient is a single individual with the majority of their assets in retirement accounts such as IRAs, 401ks, etc.  These types of assets have income tax consequences upon distribution that make them not well suited to any type of structured gifting program; however, when used to finance long-term care, the income taxes resulting from distributions will usually have a corresponding deduction for medical expenses.  However, in most cases, this option is not feasible for long because of the high cost of care at the facility.

Long-term Care Insurance

Another option for payment of long-term care is a long-term care insurance policy, which may help to significantly offset the cost of long-term care.  Minnesota has a Long-Term Care Partnership program that rewards individuals for purchasing a long-term care policy.  Qualifying policies allow the policy holders to shield additional assets from long-term care costs. Unfortunately, the benefits from a long-term care policy are limited by the coverage purchased under the policy. In many cases a long-term care policy is simply not enough.

Medical Assistance

Medical Assistance (or Medicaid in other states) is the government entitlement program that funds long-term care costs for individuals who meet certain income and asset limitations.  The program is administered by the State of Minnesota on the county level.

Asset Qualification

In order to qualify for Medical Assistance, the applicant must reduce their countable or available assets to no more than $3,000.

If the applicant is married, there are federal spousal impoverishment rules that apply toward the division of assets between the applicant and the spouse remaining in the community.  The assets encompassed in this division are itemized on the asset assessment date.  The asset assessment date is the first day the applicant enters a skilled nursing facility and stays for 30 continuous days, or the first day the applicant was admitted to the hospital and directly discharged into a skilled nursing facility and the combined stay totals 30 days or more.

On this date the couples’ assets are divided into three categories: exempt, excluded and available.

  • Exempt assets are assets that are disregarded for determining Medical Assistance eligibility.  Examples of these types of assets are pre-paid burials, gifts made beyond the applicable look-back period, and life estate interests granted prior to August 1, 2003.
  • Excluded assets are assets that are not counted toward the determination of Medical Assistance eligibility, usually because there is a spouse living in the community.  Common examples of excluded assets are:
    • Primary Residence
    • One Vehicle
    • Personal Property

For example, the primary residence of the community spouse is an excluded asset while the community spouse resides there.  The value of the primary residence is not incorporated into the couple’s division of assets.

  • Available assets are everything else the couple owns that is not an exempt or an excluded asset.

Division of Assets

The couples’ available assets are split 50-50 between the applicant spouse and the community spouse with a maximum allocation of $117,240 and a minimum allocation of $33,278.  The applicant spouse may have no more than $3,000, so any amount in this split which leaves the applicant spouse over $3,000 must be reduced.  The following examples illustrate how this asset division operates:

John and Jane Doe have available assets totaling $250,000. John is in long-term care. Jane will be allowed to keep $117,240 and John may keep no more than $3,000. As such, John and Jane will have to reduce excess assets of $132,760 ($250,000 – $117,240) to no more than $3,000 before John will be eligible for Medical Assistance benefits.

Jack and Mary Olson have available assets totaling $100,000. Mary is in long-term care. The couples’ assets will be subject to a 50-50 split. Jack will be able to keep $50,000 and the other $50,000 will have to be reduced to no more than $3,000 before Mary will qualify for Medical Assistance benefits.

There are additional circumstances where the community spouse may be able to retain additional assets.  These generally arise when the community spouse receives an additional allowance due to their income falling below a certain amount.  These circumstances will be addressed in a future posting regarding income qualifications for Medical Assistance.


Choosing a method for paying for long-term care is complicated, and for individuals with limited assets there may not be much of a choice beyond Medical Assistance.  It is important to be well informed of the rules surrounding Medical Assistance in order to make sure that no detrimental decisions are made in the years prior to needing Medical Assistance that would negatively affect the application process.  It is essential to have a qualified attorney on your side to ensure that you have properly planned for your long-term care needs if and when they arise.


Man & Woman at Laptop - iStockYes, there are forms out there, and yes, many documents that attorneys draft begin from a template or form. However, consider these two major points for discussion with this myth: first, the law is full of variation from state to state and forms may or may not be drafted with your state’s peculiarities in mind, and the law is full of terms of art and seemingly simple phrases or words that included or omitted can have unintended consequences. Drafting documents with an understanding of the state-by-state variations and interpretations is what attorneys are trained to do.

Second, estate planning is not only a Will: there are other documents involved, including documents for incapacity planning (a Power of Attorney, Health Care Directive), and documents you will want coordinated with the directions you provide in your Will, like beneficiary designations for your qualified plans. Finally, if there are special circumstances in your life – like a  second marriage or a beneficiary with special needs – you may wish to include specific trust provisions above and beyond what you may be aware of as options for your circumstances.


Estate Planning Myth #2: Death Taxes Only Affect the Super Wealthy

by Erika Stein Rosenhagen April 8, 2014 Estate Planning 101

One wonderful thing about the first session of the 113th Congress was its efforts to enact a taxing scheme allowing an exemption from estate taxes for those with less than $5 million (indexed to inflation), […]

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Estate Planning Myth #1: I don’t need a Will – I don’t have kids

by Erika Stein Rosenhagen April 2, 2014 Estate Planning 101

Even if you don’t have a Will, you still do have an estate plan. Without a Will, it’s the state’s version of estate planning that prevails through your state’s intestacy statute. The state’s plan will […]

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Epilawg Series: Top Ten Estate Planning Myths

by Jayne Sykora April 1, 2014 Estate Planning 101

One of our great contributors here at Epilawg is Erika Stein Rosenhagen, an estate planning attorney practicing in Minnesota. Over the next month and a half we will be featuring a series of posts from […]

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Changes to Minnesota’s Estate & Gift Tax

by Jamie Held March 27, 2014 Estate Planning 101

Late last week Governor Dayton signed into law a $440 million tax cut package aimed to put “more money in the pockets of Minnesota families and businesses.” Included in the package are changes meant to […]

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After Hours with Lindsey Manhart

by Jayne Sykora March 25, 2014 After Hours

• Name: Lindsey Manhart • Employer: American Family Insurance • Position: I advise people on their insurance to ensure their policies are tailored to fit their needs. • Location: Minnetonka, MN • Education: B.A. in […]

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The Bitter End

by Maggie Green March 19, 2014 Uncategorized

It’s a shocking and infrequently cited fact that the death rate among the human population in the United States is 100%. It will happen to all of us. When you think of it this way, […]

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Don’t Leave Your Money Behind

by Jennifer Santini March 13, 2014 Estate Planning 101

Recently, Joe Larson wrote about what to do when you’ve been terminated by your employer and what your rights are with respect to your personnel file. It raises a reminder that whether you have been […]

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Governor Dayton’s Estate & Gift Tax Simplification Proposal

by Jamie Held March 11, 2014 Taxes

Last week, Governor Dayton issued proposed tax cuts of $616 Million. The tax cuts are aimed at middle class Minnesotans and businesses. The proposed tax cuts include simplifying the state estate tax and eliminating the […]

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