Q. I recently qualified for SSI and Medi-Cal, but I am going through a divorce . I worry that when my ex-spouse is ordered to pay me Spousal Support, I may then lose my SSI and Medi-Cal. Is there a way that I can keep my public benefits and also receive support? I am now 62 years old, if that makes any difference?
A. Yes, indeed, if the right strategy is implemented. Unfortunately, very few Family Law attorneys and judges are familiar with how to preserve these benefits in the divorce context. As a result, the sad fact is that many persons on SSI and/or Medi-Cal lose their benefits when they divorce. A bit of background might be helpful:
To qualify for Supplemental Security Income (“SSI”), an individual with a disability must meet two financial conditions: The individual must (a) have less than $2,000 in non-exempt resources (e.g. savings), and (b) his or her monthly income must be less than the SSI benefit rate, currently $1,133.73 (in 2023). An award of SSI also entitles the beneficiary to Medi-Cal.
In the divorce context, a spouse would typically be awarded both spousal support and a division of marital assets, such as bank accounts, IRA’s, etc. If that spouse were receiving SSI and/or Medi-Cal, the award of support and/or marital assets could render her ineligible for public benefits if they put her over the income or resource ceilings. The question, then, is whether there is a way to preserve BOTH a spouse’s public benefits AND her right to support and to a share of marital assets in a divorce?
Answer: YES. Enter the Special Needs Trust (“SNT”). If set up properly, the SNT can hold both your court-ordered support and your share of community resources without impairing your right to SSI, and thus preserve both your public and “private” benefits.
Working with an attorney with expertise in this area, you could establish your own SNT and even select your own Trustee, who might be a parent, sibling, or even a trusted friend. Alternatively, you could join a Pooled SNT, established and managed by a non-profit organization for a pool of beneficiaries, which would provide professional trustee services for a reasonable fee.
Your court-ordered support would then be paid monthly directly to the SNT Trustee, rather than to you. The Trustee would then deposit the funds into your SNT and handle them in a manner compliant with the SSI and Medi-Cal rules. This typically would mean that the Trustee would not disburse funds directly to you, but instead would pay your third party providers, selected by you, directly for the goods and services that you need, such as a car, computer, clothing, etc. A good trustee would comply with your requests for payment to your selected providers, so long as those payments did not undermine your ongoing eligibility for the public benefit programs. The trustee would also typically make periodic reports to the government programs to affirm compliance with the program rules.
Recipient of Support Must be Under Age 65 When the Initial Order is Made
Also, you must be under age 65 when the Court Order is initially made, but once made, spousal support paid into the SNT even after you turn age 65, continues to be treated as exempt unearned income by SSI.
To make this option work, it is essential that you engage an Elder Law or Special Needs attorney familiar with the use of the SNT in the divorce context. The SNT attorney would then work with your divorce attorney and would help educate the judge and opposing counsel as to the benefits of this technique.
Adult Child With Disability
The same technique would apply in the case of an adult child with a disability who receives SSI and Medi-Cal and for whom a parent is ordered to pay child support. By properly establishing and administering a SNT for that child, he or she could then receive the advantages of both public benefits AND child support, which together would enhance that child’s life.
For more reading, see the article on this website entitled “Special Needs Planning and Divorce”