As I have discussed in other articles, when dealing with a loved one entering a nursing facility and trying to qualify that loved one for Medicaid, a number of different planning options exist. However, let’s say that you have run out of options and your loved one still has more than $1500 in assets and thus ineligible for Medicaid. What can you do?
One option that you probably are aware of is the purchase of a pre-need irrevocable funeral contract and a pre-need irrevocable burial space for your loved one. An option that you may not be aware of is the purchase of pre-need irrevocable burial spaces for immediate family members using your loved one’s assets. This can help reduce those assets below $1500 and qualify the loved one for Medicaid.
Pursuant to the Ohio Medicaid Regulations, burial spaces are considered excluded resources, and the individual is permitted to own a burial space and also be on Medicaid. The regulations also provide that the purchase of a burial space held for the family member, his or her spouse, or any other member of his or her immediately family is considered an excluded resource for Medicaid purposes, regardless of value. An individual’s immediate family members include his or her parents, including adoptive parents, minor or adult children, including adopted and step-children, the individual’s siblings, including adopted and step-siblings, and the spouses of those immediate family members.
Burial space is defined in the regulations as a burial plot, grave site, crypt, mausoleum, casket, urn, or other repository customarily and traditionally used for the deceased’s bodily remains. This can also include a contract for care and maintenance of the grave site and necessary and reasonable improvements or additions to such spaces, including but not limited to vaults, headstones, markers, plaques, burial containers such as caskets, and arrangements for the opening and closing of the grave site.
Therefore, if a family member is trying to qualify for Medicaid and has excess resources, one planning option is for that family member to pre-purchase burial spaces for any of the immediate family members previously mentioned above. A funeral home may enter into an irrevocable pre-need funeral contract for any of the immediate family members and list the burial space items to be provided upon their death. The family member who is trying to qualify for Medicaid may then use his or her assets to prepay for those burial space items. It is important to make sure that only burial space items are purchased and that the irrevocable burial contract does not include any other funeral services or items that would not qualify as a burial space item.
Therefore, family members should consider the purchase of burial spaces for their immediate family members when trying to spend down to qualify for Medicaid assistance.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663
Phone: (330) 364-3472
Fax: (330) 602-3187