Unfortunately, one spouse will often become ill before the other. In the event that one spouse needs nursing home care, an attorney will often tell the well spouse, often known as a community spouse, to disinherit his or her spouse.
Obviously, the thought of disinheriting a spouse is a very emotional and stressful moment in a couple’s marriage. We often receive phone calls from children and spouses when they are told by an attorney to do this because the explanation is not generally thorough or detailed.
The general reason why attorneys will recommend disinheriting a spouse is to ensure that, if the well spouse passes away before the spouse in the nursing home, called the institutionalized spouse, the assets do not transfer to the institutionalized spouse.
If they did, then the institutionalized spouse would likely lose any Medicaid benefits he or she has. Disinheriting that spouse will at least protect a portion of the family’s assets. In this type of situation, Colorado likely would still insist on the institutionalized spouse electing against the will of the spouse who passed away, but you’re still protecting a significant portion of assets that would otherwise go to the nursing home or the state, and not to the family.
This recommendation is never made out of malice or because an attorney isn’t sensitive to the family dynamic, but rather in an attempt to assist and protect family assets for the future. If you were given this advice, please ask your attorney to explain why, and although it is never easy to do, generally families understand and comply.
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