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Divorce with a special needs child: consider estate advice too

On Behalf of | Jul 22, 2016 | Estate Planning |

Family issues and legal issues often intersect. When you have children with special needs, there are even more circumstances to consider than the average family. Most families can discuss how they should deal with unexpected incapacity or the administration of an estate.

A child with special needs often neither able to participate in this conversation or handle their own care when you are not there to help. In addition to adequately providing for the child in an estate plan, parents and caregivers must think about the child’s life without them and proceed carefully in order to protect the child’s eligibility for government benefits.

Divorce is a family issue that complicates estate planning even further. That is why it is important to consult with a legal professional for estate planning when financially preparing for the future.

Estate planning for special needs

If you have a child with special needs, it is important to ensure that his or her needs will be met if you or other caregivers pass away unexpectedly. Because many children with special needs require care and supervision throughout adulthood, this requires a lot of long-term planning.

An estate attorney can help you understand what documents need to be on file in order to safeguard your child’s future without endangering his eligibility for government benefits such as Supplemental Security Income and Medicaid.

A special needs trust can provide a layer of protection for your child. This is a trust that is created and funded by a third party such as an authorized non-profit organization. It can be administered by a family member or a court-appointed trustee. A special needs trust will not prohibit the individual from receiving government benefits.

There are other estate planning documents that are important for families with children who have special needs. An attorney can help prepare these documents, which include a will, a general durable power of attorney (GDPA), a durable medical power of attorney, and a living trust.

How does divorce affect the estate?

Divorce is a difficult decision, particularly for parents with a special needs child. You may worry about whether the child can handle the change or if you will have the funds necessary to be able to provide the same care. The second issue is one that your divorce lawyer can help you tackle, but it is a good idea to bring in an estate attorney as well during the process.

A special needs trust is particularly beneficial in the case of divorce, as it can be used to receive child support payments. The effect of child support on eligibility for government benefits can be mitigated if the special needs trust is properly implemented. This should be part of the property settlement agreement, a stage of the divorce proceedings.

Guardianship and custody is another significant concern in a divorce involving a child with special needs. In the case of a minor child, an agreement regarding parenting responsibilities should be part of the property settlement agreement. If the child has reached the age of majority, the court will undertake a guardianship proceeding to determine the type and quality of care needed.