Providing for children with special needs through an estate plan involves unique 

considerations. That is particularly true when the child’s parents are divorced and child support is involved. “There are few challenges more difficult than going through divorce and having a child with special needs,” Lili Vasileff of the Special Needs Alliance writes. “From a legal perspective, the goal is to identify and understand how to determine the child’s best interests….Alimony and child support payments need to consider the child’s eligibility for government benefits,” she adds.

Ideally, a special needs trust should be set up even before the divorce decree is finalized. The concept (see our blog post of a few days ago on the subject of special needs trust planning) is for the child to be able to continue receiving governmental benefits (Supplemental Security Income and Medicaid) and still be able to receive parental support to help pay for services and care over and above what the government provides.

The set-up and administration of a Special Needs Trust is no simple matter.  There are many laws, both state and federal, that govern the way SNTs are created, how they are funded, how they need to be run, and how they end. This is certainly one type of planning best done with the help of an estate planning attorney.

In the context of divorce, failing to irrevocably assign child support payments to a special needs trust may reduce that child’s Supplemental Security Income (SSI) benefits, create a Medicaid spend down, or make them ineligible for governmental benefits in some cases.  It is not uncommon for a judge to order a noncustodial parent to continue paying support after a child with special needs reaches majority.  Once a child with disabilities reaches the age of 18, Social Security determines the child’s SSI eligibility based on the child’s own income and resources.  Support payments paid to or on behalf of the child and not assigned to a trust can reduce the amount of SSI the child is eligible to receive.  Further, if those benefits accumulate in the child’s name, they could run the risk of violating SSI’s resource limit of $2,000.  The receipt of support which is not assigned to a special needs trust can also effect Medicaid eligibility before and after a child’s 18th birthday.

“It is essential that your family law attorney work with a special needs attorney,” Vasileff cautions. “Divorce attorneys do not always know how child support payments made directly to the custodial parents interact (negatively) with ‘means tested’ government benefit programs,” she stresses.

At Rebecca W. Geyer & Associates, we couldn’t agree more. Our attorneys often coordinate efforts with family law professionals and financial planners to help parents of special needs children navigate through the complex maze of laws and provide clear solutions.

Providing for special needs children is one area of the law that absolutely requires compassionate – and knowledgeable counsel!




– by Ronnie of the Rebecca W. Geyer blog team