Older generations pass on in the circle of life and make room for the new. While alive, we are motivated by our children to work extra hard and give them a head start in their lives. Sure- it is easy to say that you’ll leave a will for your children. But what about your child with special needs?

Special Needs Estate Planning focuses on preparing for our loved ones with disabilities’ unique requirements after we are not here to coordinate and fight for them. In order to manage their children’s present and future legal, financial, and special care needs, parents of special needs children must carefully consider their estate planning options. A Miami Special Needs Planning Attorney from The Martins Law Firm will help you.

A Special Needs Trust: What is It?

A trust contains assets and stipulates how they should be used while the beneficiary is still alive, as well as what should happen to any remaining assets once the beneficiary passes away.

A special needs trust also referred to as a “supplemental needs trust,” is a tool for estate planning that enables a person with a disability or functional needs to receive financial support without jeopardizing any means-tested government benefits they may be receiving, such as Medicaid or Supplemental Security Income (SSI).

A special needs trust is created to allow the trustee to offer services for which the government would not typically pay.

These services could include:

Types of Special Needs Trusts

First-Party Trust

The disabled individual themself provides the funding for this type of trust. There are numerous ways to finance it, but funds obtained from a personal injury litigation, typically involving the incident that resulted in the impairment, are particularly popular. Parents, a guardian, or the court may create these trusts. Once the beneficiary passes away, the funds can only be utilized for the beneficiary’s benefit.

Third-Party Trust

Typically a parent establishes and funds the trust as part of an overall estate plan. Instead of giving in to the beneficiary’s demands, the trustee can give the money to the beneficiary whenever they see fit. The third-party trustee holds power over the trust and has the right to change, add, or remove any provision as they see proper.

When Does the Need for a Special Needs Trust Arise?

A parent of a disabled child wants to provide for their child without jeopardizing the child’s Medicaid benefits.

In the interest of their impaired child, the special needs planning attorney for the parents would advise establishing a third-party special needs trust. The parent’s will or revocable trust would be the foundation for this trust. When a parent passes away, a third-party special needs trust would be established and run by a trustee who would only make provisions for things and services that are not encompassed in Medicaid.

A Medicaid recipient receives an unforeseen inflow of cash.

For instance, if a person receiving Medicaid is involved in a vehicle accident and receives a personal injury settlement, the additional funds may compromise their eligibility for Medicaid and result in the termination of Medicaid benefits.

A first-party (or self-funded) special needs trust should be established by the personal injury client, who is already enrolled in Medicaid, to keep the personal injury compensation in order to preserve their Medicaid eligibility. The next section goes into greater information about first-party special needs trusts.

A married couple faces divorce

The financial requirements of a child with special needs should be taken into account when a couple divorces. You need to deal with issues like therapy, rehabilitative services, medicine, and an unending list of concerns you may have.


Estate planning for a family with special needs children comes with a complex set of financial, social, and medical issues that some lawyers are ill-equipped to handle. But the experienced special needs planning attorneys who are dedicated to ensuring your child with special needs will be well taken care of when you’re no longer able to serve as the primary caregiver.

We offer a variety of estate planning tools and strategies designed to accommodate the unique circumstances presented by children with special needs and their families in Florida. We can help you pass on the financial assets needed for your child to live a rich quality of life without jeopardizing their eligibility for government benefits. We’ll also assist you in finding and appointing a trusted guardian and/or trustee to look after them in the event of your death or incapacity. And we’ll help with locating the best residential opportunities—as well as the means to pay for them.

Special Needs Trusts

One Catch-22-like situation surrounding estate planning for those with special needs is leaving enough money to pay for the massive amount of care and support these individuals typically need throughout their lifetimes. Yet, if parents leave a large lump sum of money directly to a child with special needs, they risk disqualifying him or her for government benefits like Medicaid and Supplemental Social Security Income.

Fortunately, the government allows assets to be held in what’s known as a “special needs trust” to provide supplemental financial resources for the physically, mentally, or developmentally disabled child without affecting their eligibility for public healthcare and income assistance benefits. That said, the rules for such trusts are quite complicated.

For instance, funds from a special needs trust cannot be distributed directly to the disabled beneficiary and must be disbursed to a third-party who’s responsible for providing the goods and services they need to maintain a comfortable lifestyle. What’s more, the requirements for a child with special needs change dramatically over time, as do the laws governing public benefits.

Given this, it’s vital to work with an experienced special needs attorney who can create a comprehensive special needs trust that’s both properly structured and appropriate for your child’s specific situation.

Special Needs Planning

Contact The Martins Law Firm if you need estate planning for your child with Down syndrome, autism, cerebral palsy, or another developmental or intellectual disability. Our team of experienced Miami special needs planning lawyers can develop a sustainable living plan for your child with special needs that will provide them with the finances they need to live a full life, while preserving their access to government benefits.

We at The Martins Law Firm also think that having options when protecting our most vulnerable is important. Let’s go over each one’s advantages and disadvantages.

Set up a meeting with a reputable estate lawyer, then let’s get started. We are here to assist, so it doesn’t have to be overwhelming.

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