Legal Question in Wills and Trusts in Massachusetts

Re: Waving rights under a will

You need to be very careful about what you do. If the waiver is considered a gift, it will deprive the widow of medicaid benefits.

You should consult an elder care attorney immediately. There may be a better way to deal with estate and protect the mother's medicaid benefits.

Please feel free to contact me if you have more questions.

Re: Waving rights under a will

While disclaimers (another word for waiver) have their place in estate tax planning, they can be very problematic if you are more concerned about MassHealth. Whether this is the right move for the widow heavily depends on the financial facts of her situation.

Unfortunately, under MassHealth regulations, if a surviving spouse waives her rights under the will, the action is viewed as a disqualifying transfer and is subject to the five-year look-back period. If she is receiving benefits now, those benefits will be discontinued.

There are, however, a couple of options which could be available to the widow which would preserve Medicaid eligibility -- or at least minimize ineligibility, depending on the facts. Please feel free to contact me if I can be of assistance.