Medicaid and the Surviving Spouse’s Forced Share

Assistant Professor Julia Belian of Creighton University has recently published a thought-provoking article entitled Medicaid, Elective Shares, and the Ghosts of Tenures Past, 38 Creighton L. Rev. 1111-1152 (2005).

Here is the summary of the article as provided on Lexis:

For longer than most lawyers remember to remember, the right of a surviving spouse to a share in the deceased spouse’s estate stood, unassailable, doing double-duty as a protection against spousal impoverishment and as a limit on a spouse’s ability to deplete the children’s share of the decedent’s estate. … If that is the goal, then why continue using a look-back period at all? Why not count all assets ever transferred into trust? Indeed, why not count all assets ever transferred at all, such as inter vivos gifts? For that matter, why limit such treatment only to “transfers”? Why not also count as “available assets” those dollars the applicant may have “wasted” on gambling, or smoking, or drinking, especially since those practices have a direct effect on the overall cost of that individual’s health care? And why limit inclusion of surrendered rights to those granted by statute, like inheritance or the elective share? Why not include as “available assets,” for example, the total amount that could have been payable by long-term care insurance had the applicant taken the necessary action to create that enforceable claim?