Special Needs Planning Attorney
When a family member has a disability, the financial decisions you make today will shape their quality of life for decades — and the decisions you don’t make can be just as consequential. At Ginsberg Shulman, PL, David Shulman — Board Certified by the Florida Bar in Wills, Trusts & Estates — works with families to build estate plans that protect disabled beneficiaries without cutting off the government benefits they depend on. Special needs planning is not a simple add-on to an estate plan. It requires precision: the wrong structure can disqualify a beneficiary from SSI or Medicaid with a single inheritance.
What Is Special Needs Planning?
Special needs planning is the practice of structuring an estate plan so that a beneficiary with a disability can receive family assets without losing eligibility for means-tested government benefits — primarily Supplemental Security Income (SSI) and Medicaid. Both programs impose strict asset limits. An outright inheritance, even a modest one, can push a beneficiary over those limits and force a spend-down before benefits resume. The solution is not to disinherit the beneficiary. It is to hold assets in a properly drafted trust that supplements — rather than replaces — whatever government support the beneficiary already receives.
Who Needs Special Needs Planning?
Any family with a disabled beneficiary in their estate plan should consider this type of planning. The beneficiary might be a child with a developmental disability, an adult sibling with a psychiatric condition, or a grandchild with a chronic illness. The common thread is means-tested government benefits — if the beneficiary receives or may eventually receive SSI or Medicaid, an outright inheritance creates risk. Parents of minor children with disabilities often address this during the initial estate plan. Parents of adult children with disabilities sometimes arrive after a crisis — an inheritance has already been received, and benefits have already been lost. Earlier planning produces better outcomes.
How Does a Special Needs Trust Protect Benefits?
A third-party special needs trust holds assets contributed by family members — parents, grandparents, or other relatives — for the benefit of a disabled individual. Because the beneficiary never owns trust assets, those assets do not count against SSI or Medicaid resource limits. The trust must be fully discretionary: if the beneficiary has any legal right to demand distributions, the trust may be treated as an available resource for eligibility purposes. The trustee manages and distributes funds for supplemental needs — things government programs do not cover. The trust must be drafted to comply with both federal and Florida law. Errors in drafting defeat the trust’s purpose entirely.
What Can a Special Needs Trust Pay For?
The trust can pay for goods and services that supplement what government benefits provide — not replace them. Permissible expenditures typically include education, unreimbursed medical and dental expenses, electronic equipment, transportation, recreational activities, vocational training, and prepaid funeral expenses. Distributions are generally safer when paid directly to vendors and service providers rather than to the beneficiary, because cash payments and certain in-kind support can reduce SSI benefits.
One category requires particular care: shelter, and in some cases food, can trigger a reduction in SSI under the In-Kind Support and Maintenance rules. The reduction is capped — it does not eliminate benefits — but it affects how distributions should be structured. David advises trustees on how to manage these distributions to preserve the beneficiary’s total resources.
Who Should Serve as Trustee of a Special Needs Trust?
For most families, the hardest question is not how to draft the trust — it is who will manage it after they are gone, and whether that responsibility will burden the people they leave behind. A family member may be willing but may not understand the distribution rules well enough to avoid inadvertently reducing benefits. A sibling serving as trustee also faces relationship dynamics that can complicate administration over decades.
Professional trustees and trust companies are an option but carry cost and may lack the personal connection to the beneficiary that good trusteeship requires. A co-trustee structure — one family member for relationship continuity, one professional for technical compliance — works well in many cases. The right answer depends on the family’s circumstances, the complexity of the trust assets, and the beneficiary’s needs. This is a planning conversation, not an afterthought.
Third-Party vs. First-Party Special Needs Trusts
The trusts most families need are third-party special needs trusts — funded with assets belonging to the family, not the beneficiary. These trusts have no payback requirement: when the beneficiary dies, remaining assets pass to whoever the family designates.
First-party special needs trusts are funded with assets belonging to the beneficiary — typically a personal injury settlement or an inheritance received outright before a trust was in place. First-party trusts carry a Medicaid payback obligation at the beneficiary’s death. They are a different instrument serving a different purpose. If you are dealing with a first-party situation, that conversation starts with a different set of questions.
Special Needs Planning and Retirement Accounts
Retirement accounts require separate attention in any special needs plan. Under the SECURE Act, most beneficiaries must exhaust an inherited IRA within ten years — a compressed distribution schedule that can generate significant income tax. A disabled beneficiary, however, qualifies as an Eligible Designated Beneficiary and may take distributions over life expectancy rather than taking the full account within a decade.
To preserve that treatment, the trust receiving the retirement account must be structured as a qualifying see-through trust that meets specific IRS requirements. Done correctly, this produces a long-term, tax-efficient income stream for the beneficiary. Done incorrectly, the stretch is lost and the ten-year rule applies. Retirement accounts are among the most tax-sensitive assets in an estate plan — coordinating them with a special needs trust requires both estate planning and tax expertise.
How Does Special Needs Planning Fit Into an Estate Plan?
Most families address special needs planning through a third-party special needs trust coordinated with careful beneficiary designations. The trust is typically created inside the parents’ revocable trust or will, funded at death. But retirement accounts, life insurance, and other beneficiary-designated assets require separate attention — naming a disabled beneficiary directly on those accounts bypasses the trust entirely and creates the same eligibility problem an outright inheritance would. We offer a complete special needs plan that accounts for every asset in the estate, not just the ones that pass through the will.
Do You Need a Guardianship for an Adult Child With a Disability?
When a disabled individual reaches 18, parental authority over their decisions ends regardless of the disability. If the person lacks capacity to make their own medical or financial decisions, a formal legal mechanism is necessary.
Guardianship is not always the answer. In some cases, a durable power of attorney and health care surrogate designation can reduce or avoid the need for guardianship, depending on the individual’s capacity and circumstances. For individuals with intellectual or developmental disabilities, Florida’s Guardian Advocacy process under § 393.12 offers a streamlined alternative that avoids a full adjudication of incapacity. When the severity of the disability requires full court oversight, guardianship is handled by Jill Ginsberg — Board Certified in Elder Law by the Florida Bar.
Why Work With a Board Certified Specialist?
Special needs trusts fail when they are drafted by attorneys who do not work in this area regularly. The distribution standards, trustee powers, and beneficiary designations must satisfy both trust law and federal benefits law simultaneously — and now retirement account law as well. A trust that reads fine as a trust document can still disqualify a beneficiary from SSI if the discretionary standard is wrong, or lose the SECURE Act stretch if the IRS see-through requirements are not met.
David Shulman is Board Certified in Wills, Trusts & Estates by the Florida Bar, a credential held by only a small number of attorneys statewide. Board certification requires demonstrated competence, peer review, and ongoing continuing education in the specialty. For a trust that must work correctly for decades, that matters.