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A New Era for ABLE Accounts: Why the 2026 Changes Matter

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For families navigating the financial realities of disability, planning has often felt like walking a tightrope.

Save too much money, and a loved one could lose access to essential public benefits. Spend too quickly, and long-term financial stability becomes harder to achieve. For years, many individuals with disabilities have faced an impossible choice between financial independence and maintaining eligibility for programs like Supplemental Security Income (SSI) and Medicaid.

ABLE accounts changed that equation when they were first introduced in 2014. But in 2026, the program is entering an entirely new chapter.

The latest changes to ABLE accounts are not simply technical updates buried in federal legislation. They represent one of the most meaningful expansions of disability financial planning tools in more than a decade — and they could affect millions of Americans who previously had no access to these accounts at all.

The Expansion Families Have Been Waiting For

The biggest shift arrived quietly but carries enormous implications: the age-of-onset requirement for ABLE eligibility increased from age 26 to age 46.

Until now, individuals generally qualified for an ABLE account only if their disability began before age 26. That restriction excluded many adults who developed disabilities later in life — including veterans returning with service-related injuries, adults diagnosed with multiple sclerosis or Parkinson’s disease, individuals who experienced traumatic brain injuries, and countless others whose disabilities emerged after young adulthood.

Beginning in 2026, that landscape changes dramatically.

Now, individuals whose disability began before age 46 may qualify for an ABLE account, opening the program to millions more Americans. For many families, this expansion feels less like a policy adjustment and more like long-overdue recognition that disability does not follow a single timeline.

A 42-year-old veteran injured during military service. A professional diagnosed with a degenerative neurological condition in her thirties. A parent who suffers a disabling accident later in life. These individuals were largely shut out of the original ABLE framework. They no longer are.

Why ABLE Accounts Matter So Much

To understand why these changes are significant, it helps to understand the problem ABLE accounts were designed to solve.

Many public benefits programs impose strict resource limits. SSI recipients, for example, generally cannot possess more than $2,000 in countable assets without risking benefits. That threshold has remained painfully outdated for decades.

ABLE accounts created a legal workaround. They allow eligible individuals with disabilities to save money in tax-advantaged accounts while preserving access to critical government assistance.

The funds can be used for a broad range of disability-related expenses, including housing, transportation, healthcare, education, assistive technology, employment support, and daily living needs. Earnings grow tax-free when used for qualified disability expenses, giving families a practical way to build financial security without triggering benefit disqualification.

For many individuals, ABLE accounts became the first realistic opportunity to save for emergencies, future housing needs, or long-term independence.

More Flexibility, More Opportunity

The changes arriving in 2026 go beyond expanded eligibility.

Contribution limits also increased, allowing families and beneficiaries to save more each year. Friends, relatives, employers, and the account owner may all contribute to the account, making ABLE planning increasingly collaborative and accessible.

Meanwhile, the “ABLE to Work” provisions continue to offer especially meaningful advantages for employed beneficiaries. Eligible workers may contribute amounts above the standard annual limit under certain circumstances, giving individuals with disabilities greater opportunity to accumulate savings through employment income.

This matters because ABLE accounts are no longer viewed merely as benefit-protection tools. Increasingly, they are becoming vehicles for independence.

A young adult with a disability may use an ABLE account to save for an accessible apartment. A working beneficiary may build emergency reserves without fear of losing Medicaid coverage. Parents may finally feel comfortable transferring modest financial support directly to a child with disabilities without unintentionally jeopardizing benefits.

The psychological effect is just as important as the financial one. Financial autonomy changes lives.

A Shift in Disability Planning

The expanded ABLE rules are also reshaping conversations among attorneys, financial planners, and caregivers.

Traditionally, special needs trusts served as the primary tool for protecting assets while preserving public benefits eligibility. Those trusts remain critically important, particularly for larger inheritances, legal settlements, or complex family planning situations. But they can also be expensive to establish and administer.

ABLE accounts offer a simpler alternative for many families. They are easier to open, less costly to maintain, and often more flexible for everyday spending.

In practice, many families now use both strategies together: a special needs trust for long-term asset protection and an ABLE account for daily financial management and accessible spending.

The 2026 eligibility expansion makes this planning combination available to a far broader population.

The Human Side of the Law

What makes the ABLE changes particularly notable is that they reflect a broader shift in how disability policy is evolving in the United States.

For decades, disability benefit systems were built around restrictions — limits on income, savings, employment, and financial growth. The underlying assumption was often that preserving benefits required limiting economic advancement.

ABLE accounts challenge that premise.

The modern approach increasingly recognizes that individuals with disabilities should not be forced into poverty in order to receive medical care, housing support, or basic assistance. Financial stability and public benefits should coexist, not compete.

That philosophy is now reaching more people than ever before.

Looking Ahead

Families affected by disability should review these new rules carefully. Individuals who never previously qualified for ABLE accounts may now be eligible. Existing account holders may want to revisit contribution strategies, investment options, and long-term planning goals.

Most importantly, the changes create opportunities where few existed before.

For many Americans, ABLE accounts are no longer niche financial tools. They are becoming part of a larger movement toward financial dignity, autonomy, and inclusion for people living with disabilities.

And in 2026, that movement just became much bigger.

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The Easiest Way to Destroy Your Estate Plan and Stress Your Family at the Same Time

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After nearly forty years of work, Ed Lyon had a healthy TIAA retirement account through his employer, the University of Chicago. The respected urologist wanted his account to go to his 36 grandchildren. After seven years, the funds still have not been distributed. The trustee says TIAA has told them the proper paperwork was not submitted.

The account was worth $1.2 million when Lyon died. It’s worth $1.7 million today.

This is not an unusual case, and as the Great Wealth Transfer continues, we expect to see more of these disputes. People often neglect to update beneficiary designations on their accounts or don’t pay close enough attention to how the rules work. It’s a common mistake with significant implications for heirs.

When Lyons died in 2019, the tax law allowed IRA beneficiaries to take RMDs (Required Minimum Distributions) over their lifetimes, allowing the accounts to grow tax-free for many years. This is no longer the case—under recent tax legislation, IRA beneficiaries must withdraw the funds within 10 years of the original owner’s death.

But first, they have to be able to access the accounts. There’s more to the story, as reported in a recent Wall Street Journal article titled “One Small Fortune, 36 Grandkids and an Inheritance Stuck in Limbo.”

Employers are required to pay out tax-deferred retirement accounts to a surviving spouse or the last recorded beneficiary if the spouse has signed a waiver forgoing the funds. These instructions, like many federal laws governing retirement accounts, supersede any instructions in wills or trusts.

This is how ex-spouses enjoy a nice bump in their retirement funds when former spouses neglect to update their beneficiary forms. It’s also how new spouses receive 401(k) accounts: spousal rights take precedence over beneficiary designations. In one family, four children from a first marriage lost out on a $3 million 401(k) inheritance, while the second spouse upgraded her lifestyle.

The family in the Lyon case is all on the same page: the 12 adult children want the three dozen grandchildren to receive their inheritance in line with their father’s wishes.

Ed Lyons and his wife updated their estate plan when they were both in their 80s. Their daughter, Alice, was designated to make medical decisions, and her husband was named the agent for financial decisions. Their trust was updated to include 36 separate trusts, one for each grandchild. Each grandchild was to receive the annual required distributions twice a year: once on their birthday and half at Christmas. When they turned 60, distributions would shift to monthly.

In 2019, Lyons was sick, and his wife was incapacitated. His son-in-law called TIAA to confirm the beneficiary designations. When he called, the representative didn’t have the updated beneficiary form, so he completed and submitted a new one. He did everything correctly: acting as his mother-in-law’s agent under a power of attorney. He signed a document, changing the beneficiaries to the grandchildren and waiving his wife’s spousal rights.

Ed Lyon died in 2019, and his wife passed away in 2020. TIAA sent a letter stating it couldn’t process the beneficiary update because it wasn’t properly signed. In January 2022, TIAA said the family lacked authority to sign the spousal waiver, even though a POA was in place.

It gets worse. The family reached out to the employer, the University of Chicago. The daughter, son-in-law, and their family lived in Wisconsin. The university said the POA wasn’t explicit enough to cover the spousal waiver under a Wisconsin law governing annuities. The family maintained that this was a 401(k) and that the annuity rule didn’t apply. The university says plan rules and the law bind it. TIAA claims it’s only following the rules and isn’t liable for breaching fiduciary duties.

The case has moved from the state trial court to the Seventh Circuit Appellate Court in Chicago. If the family loses, the funds may pass through the late wife’s estate to the grandchildren, but at the cost of forfeiting all tax advantages.

This case should serve as a cautionary tale for families to regularly review their estate plans, update and confirm beneficiary designation forms, and ensure all paperwork is in order.

Reference: The Wall Street Journal (May 15, 2026) “One Small Fortune, 36 Grandkids and an Inheritance Stuck in Limbo”

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New Coverage for GLP-1 Medications by Medicare: Update

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Starting in July, Medicare is launching a pilot program that will offer older Americans the chance to receive these drugs for as little as $50 a month to treat obesity.

Medicare Part D covers some GLP-1 medications for diabetes, cardiovascular disease, and sleep apnea, but in the past, Medicare didn’t cover weight-loss prescriptions. The $50 monthly price for any dosage is also well below what most Medicare patients pay out of pocket for GLP-1 prescriptions.

Seniors already struggling to pay for medications aren’t likely to be able to afford an additional $660 annual fee for the drugs. The program hasn’t yet launched, but the impact could be considerable. Adding this benefit permanently would require a change in federal law and, perhaps more challenging, getting health insurance companies to offer the medications in Part D prescription drug plans.

The cost to Medicare will also be a factor in whether the pilot program is extended. The popularity of these drugs is estimated to cost $35 billion from 2026 to 2034, according to a recent article in The New York Times, “A Guide to Medicare’s New Coverage for Obesity Drugs.”

The program will run from July 1, 2026, to December 31, 2027, under the name “Medicare GLP-Bridge.” The name reflects the idea that it is intended to bridge the gap before a longer program begins – if it ever does.

Seniors seeking access to the medications must already be enrolled in a Medicare Part D prescription drug plan, have a body mass index of 27 or higher, and have certain health conditions, including heart disease or prediabetes.

The Bridge GLP-1 program will have processes that differ from those for typical Part D prescriptions. It will require prior authorization, with doctors sending prescriptions through a central system operated by the CMS contractor Humana. Once approved, patients will pay their $50 co-pay at the pharmacy when picking up their prescription.

Some things to be aware of: recipients of Extra Help can’t use it for GLP-1 Bridge drugs. The $50 co-pay won’t count toward the Part D deductible or the $2,100 out-of-pocket cap on prescription drugs.

Most studies have shown that people who stop taking the GLP-1 drugs regain the weight they lost. If the pilot program ends and the weight returns, it won’t be a permanent solution for many.

For Medicare patients who qualify for GLP-1 because of Type 2 diabetes or cardiovascular disease risk reduction, it may make sense to continue receiving it through the standard Part D plan. People already on GLP-1 for weight loss might qualify for the Bridge program.

 What will happen after the pilot program? The bridge program was originally planned for 6 months, but because not enough insurance companies signed up, CMS extended it to 18 months. The hope is that insurance companies will have more data on how many Medicare beneficiaries receive GLP-1 drugs and more time to negotiate if the plan is continued.

Nothing is simple when it comes to pharmaceutical companies, insurance companies, and the government. We wonder whether other Medicare costs would drop dramatically if more people had access to GLP-1 drugs, and whether any of these big entities would put 1 + 1 together to get 2?

#Medicare #GLP1 #SeniorHealth #HealthcarePolicy #ObesityTreatment #MedicarePartD #WeightLossDrugs #HealthyAging #HealthcareCosts #PrescriptionDrugs #estateplanningroslyn #elderlawestateplanningny #elderlawyerNY #roslynelderlawyer

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Done with Your Taxes? Estate Planning Should Be Next

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If you’ve already filed your 2025 income tax returns, you have accomplished an important financial milestone. With the details of income, assets, deductions, and liabilities still fresh in your mind, this is an ideal moment to turn your attention to another critical component of your financial life: your estate plan.

From the perspective of an estate planning attorney, tax season provides a uniquely valuable opportunity to reassess not only what you own, but also how those assets are structured, protected, and ultimately transferred.

Estate planning is not a static exercise. It is a dynamic, evolving process that should reflect changes in the law, the economy, and personal circumstances. Failing to revisit your plan regularly can result in unintended consequences, including unnecessary taxation, family conflict, or the misallocation of assets.

The Limited Shelf Life of an Estate Plan

A common misconception is that once an estate plan is completed, it can be safely stored away and forgotten. In reality, most well-constructed estate plans have a practical lifespan of approximately three to five years. This is not due to any inherent flaw in the documents themselves, but rather the changing legal and financial landscape in which they operate.

Legislative developments, particularly those affecting tax policy, can significantly alter the effectiveness of an existing estate plan. Recent federal and state-level changes have introduced new thresholds, exemptions, and planning opportunities that may render older strategies obsolete or inefficient. An estate plan drafted even a few years ago may no longer align with current law or best practices.

Accordingly, periodic review is not merely advisable; it is essential. A proactive approach allows you to take advantage of favorable legal developments while avoiding pitfalls created by outdated provisions.

The Impact of Rising Property Values

For many Long Islanders who own real estate, recent years have brought substantial increases in property values. This trend is especially pronounced in our markets, where limited inventory and sustained demand have driven appreciation at an accelerated pace.

If you purchased your home within the past five to fifty years, there is a strong likelihood that its value has increased significantly. While this may be welcome news from an investment perspective, it also has important implications for your estate plan.

An increase in the value of your primary residence—or any real property—can affect the overall size of your estate, potentially exposing it to estate tax considerations that were previously irrelevant. It may also necessitate adjustments to how assets are distributed among beneficiaries. For example, a plan that once divided assets evenly may now result in unintended imbalances if one asset has appreciated disproportionately.

In addition, higher property values may warrant consideration of advanced planning strategies, such as trusts or gifting techniques, designed to mitigate tax exposure and preserve wealth for future generations.

Planning for Incapacity: An Often Overlooked Priority

While many individuals associate estate planning primarily with the distribution of assets upon death, an equally important component involves planning for incapacity. The statistical likelihood of experiencing a period of incapacity increases significantly with age. By age 65, the probability exceeds 50 percent, and by age 80, it approaches 75 percent.

Despite these realities, a substantial number of individuals lack the legal framework necessary to ensure that their financial and medical affairs can be managed effectively in the event of incapacity. Without proper documentation, even a spouse or adult child may be required to initiate court proceedings to obtain the authority to act on your behalf. This process can be time-consuming, costly, and emotionally burdensome.

A comprehensive estate plan should include several key documents designed to address these risks:

  • Durable Power of Attorney: This document authorizes a trusted individual to manage your financial and legal affairs if you become unable to do so.
  • Health Care Proxy or Medical Power of Attorney: This instrument designates a person to make medical decisions on your behalf.
  • HIPAA Authorization: This allows designated individuals to access your medical information and communicate with healthcare providers.
  • Advance Directive or Living Will: This document outlines your preferences regarding end-of-life care, providing guidance to both your healthcare agent and medical professionals.

Together, these tools create a cohesive framework that ensures continuity, minimizes uncertainty, and reduces the likelihood of disputes during difficult circumstances.

Life Changes Demand Plan Updates

An estate plan should reflect your current intentions and relationships. However, life is rarely static. Over time, personal circumstances evolve, sometimes in meaningful and unexpected ways.

Positive developments—such as marriages, births, and educational achievements—often prompt individuals to reconsider how they wish to allocate their assets. Conversely, more challenging events, including divorce, illness, or the death of a loved one, may necessitate significant revisions to existing plans.

If your estate planning documents don’t accurately reflect your present circumstances, there is a risk assets will be distributed in a manner inconsistent with your wishes. For example, failing to update beneficiary designations or testamentary provisions following a divorce could result in unintended inheritances.

Regular review ensures that your plan remains aligned with your goals and responsive to the realities of your life.

Financial Changes and Their Consequences

In addition to personal developments, changes in your financial situation should also trigger a review of your estate plan. Over time, individuals may experience increases or decreases in wealth, shifts in investment strategy, or changes in business ownership.

Consider, for instance, a charitable bequest specified in a will. If the bequest was established during a period of financial abundance but your circumstances have since changed, fulfilling that obligation may place an unintended burden on your estate or other beneficiaries. Conversely, an increase in wealth may create opportunities to expand philanthropic efforts or implement tax-efficient gifting strategies.

An estate plan should be sufficiently flexible to accommodate such changes, while also providing clear guidance to fiduciaries responsible for administering your estate.

The Growing Importance of Digital Assets

In today’s digital world, estate planning must extend beyond traditional assets such as real estate, bank accounts, and investment portfolios. The average individual now maintains a substantial digital footprint, often encompassing hundreds of online accounts.

These may include email accounts, financial platforms, subscription services, social media profiles, cloud storage, and more. Each of these accounts may contain valuable information or assets, and many are protected by privacy laws and user agreements that restrict access.

Without proper planning, your digital assets may become inaccessible upon your death or incapacity. This can create significant challenges for your loved ones, ranging from the inability to retrieve important documents to the risk of identity theft associated with dormant accounts.

Modern estate plans increasingly incorporate provisions addressing digital assets. This may include:

  • Designating a digital executor with authority to manage and close accounts.
  • Maintaining a secure inventory of digital accounts and access credentials
  • Providing explicit authorization for fiduciaries to access digital information

If your estate plan was created more than five to ten years ago, it is unlikely to include comprehensive digital asset provisions. Updating your plan to address this area is an important step in safeguarding both your information and your legacy.

A Coordinated Approach to Estate Planning

Effective estate planning requires more than the preparation of individual documents. It involves the careful coordination of various components, including wills, trusts, beneficiary designations, and asset titling. Each element must function in harmony with the others to achieve your overall objectives.

Tax season offers a valuable opportunity to take stock of your financial landscape and ensure that your estate plan is fully integrated with your broader financial strategy. This may involve collaboration between your estate planning attorney, financial advisor, and tax professional.

Such coordination can yield significant benefits, including improved tax efficiency, enhanced asset protection, and greater clarity for your heirs.

Taking the Next Step

Completing your tax returns is an important accomplishment, but it should not mark the end of your annual financial review. Instead, it should serve as a catalyst for broader planning.

An updated estate plan provides more than just instructions for the distribution of assets. It offers peace of mind, knowing that your affairs are in order and that your loved ones will be protected in the event of incapacity or death. It also reflects a thoughtful, proactive approach to managing your legacy.

If it has been several years since your last review—or if you have never created an estate plan—now is the time to act. By addressing these issues today, you can avoid unnecessary complications tomorrow and ensure that your wishes are carried out with clarity and precision.

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Spring Holiday Wishes from The Law Office of Stephen J. Silverberg

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This year Passover and Easter holidays are within the same week, and so we are sending our best wishes to all of our friends, colleagues and family members. Whether you are celebrating Passover, Easter or the Spring Equinox, we hope this holiday finds you surrounded by those you love and the joys of the spring season.

Spring holidays are centered on a message of hope for the future, a time of renewal and a time to clean out the leftovers from the winter that has passed and prepare for the coming of new growth.

While you are enjoying your family’s holiday traditions, we encourage you to think about the future and what plans you may have made for yourself and your family. If we haven’t seen you or reviewed your estate plan in the last three to five years,  we recommend having a conversation with myself or Scott to review your situation.

Estate planning is a lot of like dentistry. Few people enjoy going to the dentist, but most of us enjoy leaving the office at least once a year knowing that our teeth are super-clean and we’ve taken care of this task.

Estate plans have a longer shelf-life—about three or five years, notwithstanding any major life events. If you’ve had any large changes in your life, from selling a business to welcoming a new child, losing a loved one or getting married, your estate plan needs to be updated to be sure it still reflects your wishes.

If your spring plans include a thorough clean up after the holidays are over, we invite you to contact us to make an appointment to review your estate plan. You’ll feel great knowing it’s all taken care of.

We hope you enjoy your holiday gatherings and look forward to hearing from you soon.

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The Medicare Advantage Open Enrollment Door is About to Close

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Did you choose a Medicare Advantage (MA) plan during the open enrollment period and are disappointed with the coverage? The good news is the law is on your side. You have until March 31 to enroll in a different MA plan or return to traditional Medicare (TM).

The healthcare and insurance landscape has changed considerably. Healthcare costs are escalating, insurance companies are denying authorizations for necessary treatments, and prescription co-pays are increasing. MA plans change coverage every year or drop coverage in your area. The stakes are high. If you are disappointed with the coverage, you can make a change in the next few days. Here’s what you need to know

The law permits those who choose MA plans to switch to a new MA plan or drop their MA plan entirely and return to traditional Medicare during the Advantage Open Enrollment Period, which runs annually from January 1 through March 31. Once that change is made, it’s locked in for the rest of the year.

If you’ve encountered unexpected costs or access issues in the first few months of 2026, now is the time to make the change. Waiting could saddle you with a year’s worth of unplanned medical expenses or limited care options.

Switching to TM offers broader provider access and access to specialists and treatments without prior authorization. However, there are several issues you should consider. Traditional Medicare doesn’t cap out-of-pocket spending, but a Medigap supplemental plan helps contain costs. While many states require underwriting and limit coverage for pre-existing conditions, New York allows enrollment in or switching Medigap policies without underwriting or higher premiums, regardless of age or pre-existing conditions. If you go to Traditional Medicare, you’ll need a standalone Part D to cover prescriptions.

Here’s the thing: most people pay the closest attention to monthly premium payments, but they’re really only part of the picture. What are the plan deductibles, copays, and maximum out-of-pocket costs?

For example, a plan with $0 premium sounds great, but if you require specialty medications or frequent care, you may find it costs you more than a plan with a $350 monthly bill. TM may provide better protection against larger medical bills. There are Medigap policies that eliminate copays.

Most MA plans have a defined provider network. If your doctor is out-of-network, you could face higher costs or have to change doctors. So before making any changes, make sure your preferred providers and healthcare networks are included in the plan. For those who live with chronic conditions, like heart disease or cancer, this is especially important. With TM, you can use any doctor who accepts Medicare.

Timing matters too. When you make a change, it doesn’t take effect until the first day of the following month. Waiting until the last minute could limit your ability to resolve issues, gather plan details, or have a smooth transition between coverage options.

The deadline is less than a week away, so if you want to make any changes, review the costs, provider access, and prescription coverage to be sure your plan aligns with your healthcare needs for the coming year.

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More Good News: New York State Updates How Legal Documents Are Served

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New SCPA 307 Service of Process Rules in New York Surrogate’s Court

For years, attorneys practicing in New York’s Surrogate’s Court have navigated service of process rules that were increasingly out-of-step with how people actually communicate. While nearly every part of daily life—from banking to healthcare to court filings—has moved toward electronic and mail-based systems, service of legal papers in estate and trust matters remained stubbornly tied to personal service on New York residents, regardless of where they are located.

At the same time, service of legal documents to non-New York residents could be made by mail. We recently had a matter where a New York resident was out of state for the summer and had to hire a process server in the state to serve her. The cost was considerable and delayed the matter. If she lived in that state, postage was the only expense.

Recent updates to Surrogate’s Court Procedure Act (SCPA) § 307 now allows service by mail on New York residents. This brings Surrogates Court in line with all other courts in New York. It represents a meaningful modernization of how legal documents may be served in Surrogate’s Court proceedings. These changes are welcome news for attorneys, fiduciaries, beneficiaries, and families. By permitting service through mail and, in certain circumstances, electronic delivery, the new rules reduce delay, expense, and frustration, without sacrificing due process or fairness.

These changes are practical improvements that brings Surrogates practice in line with all other courts in New York that have allowed service by mail for decades. The streamlines the process, while still protecting the rights of all interested parties.

What Is SCPA 307 and Why Does It Matter?

SCPA 307 governs service of process in Surrogate’s Court matters. In simple terms, it dictates how and when interested parties must be formally told a legal proceeding has been started.

Service under SCPA 307 applies to many of the most common Surrogate’s Court matters, including:

  • Probate of wills
  • Administration proceedings when there is no will
  • Trust-related proceedings
  • Citations and notices to heirs and beneficiaries
  • Proceedings involving fiduciary appointments, removals, or accountings
  • Matters involving powers of attorney or objections to estate administration

Proper service is a fundamental requirement of due process. If service is defective, a court may lack jurisdiction, proceedings may be delayed, or decisions may later be challenged. But in the past, the rigid requirements of personal service often created obstacles that benefited no one.

The Old System: Personal Service as the Default

Until these recent changes, service under SCPA 307 typically required personal delivery by a process server. That meant:

  • Identifying and hiring a licensed process server
  • Physically locating the person to be served
  • Making repeated attempts if the person avoided service
  • Documenting each attempt with affidavits of service

While personal service works reasonably well when everyone lives nearby and is cooperative, estate matters rarely fit that description. Heirs and beneficiaries may live across the state—or across the country. Some may live overseas. Others may be estranged from the family or hard to locate. Even when beneficiaries were known, reachable, and willing to participate, the law still required the formality of personal delivery.

For us, this meant coordinating with process servers in multiple jurisdictions, often at significant cost. For our clients, it meant delays in moving forward with probate or administration, increased legal fees, and unnecessary stress during an already emotional time.

Two Modern Realities: Families Are Dispersed and Digital

The updated SCPA 307 rules reflect an important acknowledgment: modern families are mobile and digital. The new rules bring Surrogate’s Court practice closer to how people actually live and communicate today.

People routinely conduct sensitive business by mail and email. Financial institutions, government agencies, and courts increasingly rely on electronic communication. Requiring physical hand-delivery of papers, even when reliable alternatives exist, no longer makes sense in many estate proceedings.

What Has Changed Under the New SCPA 307 Rules?

1. Service by Mail Is Now Permitted

One of the biggest changes is that New York State residents may now be served by certified or registered mail in many Surrogate’s Court proceedings.

This alone represents a major improvement. Certified and registered mail provide:

  • Proof of mailing
  • Tracking
  • Confirmation of delivery or attempted delivery

From a due process standpoint, this method offers strong evidence that notice was sent in a reliable and verifiable way.

For clients, service by mail is faster and far less expensive than hiring a process server. For attorneys, it streamlines case management and reduces administrative complexity.

2. Electronic Service Is Now an Option in Certain Cases

The new rules also give Surrogate’s Court judges broader authority to order service by email when traditional methods are unsuccessful.

Email service is not automatic. Courts require:

  • Documented, good faith attempts at personal service or mail service
  • Evidence that the email address is valid and actively used by the recipient

When these conditions are met, email can be an effective and sensible way to ensure notice is actually received—particularly in our mobile lifestyle where people live abroad, or are hard to serve physically.

This flexibility allows courts to tailor service methods to the realities of each case, rather than forcing one rigid approach.

3. Broader Judicial Discretion for Alternative Service Methods

The updated SCPA 307 rules also expand the court’s authority to direct alternative service methods, including:

  • Special mailing instructions
  • Publication
  • Email service
  • Other court-approved methods reasonably calculated to provide notice

These options are available not only for New York residents, but also for non-residents of New York State if due diligence has been shown.

This is important in estate matters involving beneficiaries who live out of state or abroad—a common scenario in modern families.

Why These Changes Matter to Clients

From a client’s perspective, the benefits of the new SCPA 307 rules are substantial. Streamlined service means estates can progress more efficiently. Process servers can be costly. Reducing or eliminating the need for personal service lowers out-of-pocket expenses and legal fees.

Estate proceedings often follow a death, a family dispute, or a medical crisis. Simplifying procedural hurdles reduces unnecessary frustration for families already dealing with grief and transition.

Why These Changes Matter to Attorneys

For attorneys, the updated rules allow us to focus more on substantive legal issues and client counseling, rather than logistical challenges. Less time needs to be devoted to coordinating with multiple process servers. The risk of procedural errors is reduced and delays are reduced.

Fewer “John or Jane Doe” Proceedings

One practical consequence of the new rules is a reduced need for complex “John Doe” or “Jane Doe” summonses and exhaustive searches for individuals whose whereabouts are uncertain. If mail or email service proves effective, attorneys may avoid costly investigative efforts while still satisfying due process requirements. This is helpful in cases involving distant relatives, blended families, or long-lost heirs.

Due Process Still Comes First

These changes do not eliminate due process protections.

Courts still require reasonable efforts to notify interested parties, and judges retain discretion to determine whether service methods are always appropriate. The goal of the new SCPA 307 rules is not to shortcut notice, but to make sure notice is reasonably calculated to reach the person involved— which often mail or email accomplishes more effectively than personal delivery.

By embracing mail and electronic service while preserving judicial oversight, the courts have balanced efficiency and fairness.

For estate planning attorneys, fiduciaries, and families navigating probate or trust proceedings, these changes mean faster resolutions, lower costs and less procedural frustration.

If you are administering an estate, serving as a fiduciary, or planning for the future, working with an experienced estate planning attorney remains essential. The rules may be simpler—but knowing how to apply them correctly still makes all the difference.

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Important Change to Medicaid: Finally, Some Good News for Families Planning for Long-Term Care

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Every so often there is a change in the Medicaid rules that makes life a little easier for older adults and their families. This is one of those moments.

A recent federal rule change, now formally adopted by New York State, has eliminated a long-standing and often frustrating requirement in the Medicaid eligibility process. For consumers planning for long-term care—particularly nursing home or chronic care Medicaid—this change can mean lower required contributions, more flexibility in retirement planning, and fewer bureaucratic hurdles.

As elder law attorneys, we recognize the confusion and stress that Medicaid planning can cause. This article is intended to explain, in plain English, what changed, why it matters, and how families may benefit.

The Old Rule: “You Must Apply for Everything First”

Historically, Medicaid applicants were required, as a condition of eligibility, to apply for any other benefit they might qualify for—even if doing so made their financial situation worse.

This included benefits such as Social Security retirement or disability benefits, Veterans’ benefits, Railroad Retirement benefits, unemployment insurance, retirement account distributions (including IRAs and pensions), and even waivers of U.S. savings bond restrictions.

The rule was based on the idea that Medicaid is the “payer of last resort.” In theory, this makes sense. In practice, it often forces older adults to artificially increase their income, resulting in higher monthly nursing home payments and less money for a healthy spouse or other essential needs.

The New Federal Rule: A Major Shift

The Centers for Medicare and Medicaid Services (CMS) has now eliminated this requirement under federal law (42 CFR § 435.608). New York State has formally implemented this change through updated guidance to local Departments of Social Services.

What This Means in Simple Terms

With one crucial exception (Medicare), Medicaid applicants are no longer required to apply for or maximize other benefits as a condition of eligibility. This applies to both applicants and current recipients.

What Has NOT Changed

It’s essential to be clear about what still applies:

  • Medicare: Individuals must still apply for Medicare when required.
  • Third-party health insurance: Medicaid can still require coordination with available health insurance.
  • Transfer of asset rules: The five-year look-back and annuity transfer rules remain unchanged.
  • Veterans’ referrals: Districts must still inform veterans about available benefits and make required referrals.

This is NOT a repeal of Medicaid rules—instead, it is a targeted and meaningful improvement.

The Most Important Change for Elder Law Planning: Retirement Accounts

From an elder law perspective, the most significant and welcome change involves retirement accounts.

Under the prior rules, if a Medicaid applicant owned a retirement account and was eligible to take payments, Medicaid required them to take the maximum periodic payment available. This was often calculated using a single life expectancy table, which produced higher monthly incomes, increased the applicant’s Net Available Monthly Income (NAMI), resulted in larger required payments to the nursing home, and reduced funds available to a community spouse. In many cases, this forced retirees to withdraw more than they needed or wanted, accelerating the depletion of retirement savings.

The New Rule: Standard RMDs Are Enough

Under the new guidance, the following changes are in place:

  • Medicaid cannot require applicants or recipients to take the maximum payment.
  • Standard Required Minimum Distributions (RMDs) may now be used.
  • Failure to “maximize” payments cannot be used as a reason for denial or discontinuance.
  • Retirement income is counted only if the account is in payout status.

The result of this change allows more assets to remain in the IRA, appreciating tax-free, and increases the IRA’s value to the beneficiaries by thousands of dollars.

How Retirement Accounts Are Now Treated

The new guidance clarifies how retirement funds are evaluated. If the retirement account is in Payout Status, the periodic payment is counted as monthly unearned income; the principal balance is not considered a resource; and the amount of the payment no longer needs to be maximized.

If the retirement account is not in Payout Status, the account balance is treated as a countable resource. The value represents what can currently be withdrawn (minus early withdrawal penalties), and income taxes are not deducted in determining this value.

If an individual later changes the payout status, Medicaid must adjust how the account is treated going forward.

Social Security: No Longer Mandatory to Apply

Another significant consumer-friendly change is the elimination of the requirement to apply for Social Security benefits as a condition of Medicaid eligibility. This includes Social Security Retirement, survivors’ benefits, and Social Security Disability Insurance (SSDI). While many individuals still choose to apply for Social Security because it makes sense for their situation, Medicaid can no longer force the issue. Importantly, cases can no longer be denied for “failure to apply for Social Security.”

Veterans’ Benefits: More Choice, Less Pressure

Veterans and surviving spouses often face pressure to apply for benefits they may not want, or that could complicate other planning goals. Under the new rule, Medicaid applicants are no longer required to apply for veterans’ cash benefits. Prior Medicaid policy mandating such applications has been rescinded.

Please note that required referrals and informational assistance for veterans remain in effect.

This change enables veterans to make informed, coordinated decisions with the guidance of legal and financial advisors, rather than reacting to rigid Medicaid requirements.

U.S. Savings Bonds: One Less Administrative Burden

Previously, Medicaid applicants who owned U.S. savings bonds were required to request a waiver of the bond’s minimum retention period as a condition of eligibility. That requirement has now been eliminated. This change reduces paperwork, delays, and stress for families already navigating a difficult time.

Elective Share: Relief for Surviving Spouses

In some instances, surviving spouses were required to exercise their elective share rights against a deceased spouse’s estate to qualify for Medicaid. That requirement has now been eliminated for couples not subject to a review of asset transfers. This is a significant change. It protects and respects estate planning intentions, allows decisions to be made with more dignity, and reduces legal pressure during a time of grief.

Retroactive Application: Important Timing Note

For changes related to the elimination of the requirement to pursue maximum retirement payments, retroactive redeterminations are limited to changes occurring on or after June 4, 2025. This timing detail matters, particularly for individuals already receiving Medicaid benefits.

Why This Matters for Families

From a practical standpoint, this rule change lowers monthly nursing home contributions in many cases, reduces the need for forced financial decisions, provides flexibility for the community spouse, and allows retirement savings to be preserved for a more extended period.

In short, it restores a measure of common sense and fairness to a system that has long been overly rigid.

A Final Word: Planning Still Matters

While this change is excellent news, some things haven’t changed. Medicaid remains a complex program with strict rules and severe consequences for errors. These new options don’t eliminate the need for proper planning. In fact, they make good elder law guidance even more valuable, because the choices are now more nuanced.

Finally, if you or a family member were previously denied Medicaid benefits under the old rules, you can reapply.

If you or a loved one are facing long-term care needs, this is a good moment to revisit your plan—or create one—before a crisis forces rushed decisions.

For once, Medicaid planning has become a little more humane. And that is something worth celebrating.

If you have questions about these changes, please call the office to discuss your situation.

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What Estate Planning Attorneys Wish Clients Knew About AI      

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We live in a moment where artificial intelligence is woven into nearly every corner of daily life. People are using AI to plan vacations, write wedding vows, edit novels, brainstorm business ideas, and even redesign their homes. These tools are fast, friendly, and capable. It’s no surprise that many people wonder: If AI can do all of that, why not ask it to create my will or trust?

As an estate planning attorney, I understand the appeal. Typing questions into ChatGPT or Claude feels easier than scheduling time with a lawyer. And there is no shortage of online platforms promising quick, inexpensive wills and trusts “drafted in minutes.” But the truth is that estate planning, and especially Medicaid and long-term care planning, is not something AI can safely do for you.

Every month, our office now meets with families trying to unwind the fallout from AI-generated or online-generated estate plans. What was meant to be a shortcut ended up creating delays, disputes, extra expenses, and in some cases the loss of benefits or property. These issues often appear only after a person has passed away or suffered a medical crisis, when it’s too late to fix the problem.

Before relying on AI for something as important as your estate plan, here is what we wish every client understood.

Even AI Says It Shouldn’t Create Your Estate Plan

Out of curiosity, we asked ChatGPT whether it should be used to draft wills or trusts. The response: no. AI tools can help you learn, outline your thoughts, or understand basic concepts, but they cannot replace an attorney.

AI Cannot Apply State-Specific Law With 100% Precision

Estate planning is governed by state statute, case law, and strict execution requirements. A small mistake can have big consequences. For example, in New York, a will that isn’t witnessed properly, a Power of Attorney that is missing the statutory gifts rider, or a trust using outdated language can lead to:

  • Documents being declared invalid
  • Delays in probate or estate administration
  • Assets passing to the wrong individuals
  • Avoidable taxes or penalties

AI tools are trained on vast amounts of general information—but not on your state’s specific, ever-changing legal requirements. They also cannot comply with the New York Estates, Powers & Trusts Law (EPTL) or the Surrogate’s Court Procedure Act.  

AI Cannot Ensure Proper Execution of Documents

A perfectly drafted will is useless if it is signed incorrectly. New York requires specific witnessing procedures; certain documents must be notarized; and others need statutory warnings read aloud. AI cannot walk you through these requirements in real time or confirm they were followed.

Incorrect execution is one of the most common reasons we see documents fail.

AI Cannot Identify Hidden Issues or Address Sensitive Issues The Way a Human Can

A significant part of estate planning is uncovering issues clients don’t realize matter. AI only knows what you type into it—and clients rarely know what to disclose. For example:

  • Blended families or estranged relatives
  • Disabled beneficiaries and the need for special needs planning
  • Medicaid look-back issues and asset transfer penalties
  • Tax exposure or titling problems
  • Business succession complications
  • Creditor protection concerns

An attorney is trained to ask the questions you don’t know to ask. AI is trained to respond to the questions asked.

Medicaid and Long-Term Care Planning Is Too Complex for AI

Medicaid eligibility involves a five-year look-back period, transfer penalties, exemption rules, trust requirements, spousal allowances, and frequent regulatory changes. There is no algorithm that can analyze your assets, family circumstances, health risks, and legal options with the nuance required.

Mistakes in Medicaid planning are often irreversible—and costly.

AI Cannot Give Legally Binding Advice  

AI is not licensed, cannot practice law, cannot assume professional responsibility, and cannot be held accountable. Estate planning is not simply document drafting; it is legal advice, strategic planning, risk analysis, and fiduciary responsibility. Those duties cannot be delegated to software.

Should You Use AI to “Check” Your Estate Plan?

Another common question we hear is whether it’s safe to upload an existing estate plan to AI to “analyze” it. The answer is no—primarily because of privacy.

We are in the early stages of learning how AI systems store and process information. Just as social media felt harmless until people realized their personal data was being tracked, shared, or sold, we will likely see a similar learning curve with AI.

When you upload sensitive information to an AI system, it enters a database stored on massive servers you cannot control. It may be retained permanently or temporarily. You cannot be certain who may have access to it, now or in the future. Estate planning documents contain financial information, family details, medical concerns, and business ownership structures, all of which need not be set loose in the world.

Our firm uses multiple security systems to keep client data private. AI tools do not offer that level of protection, and their privacy policies make that clear.

AI Lacks Human Judgment—and That Matters

Even with impressive computing ability, AI does not understand family dynamics, personal values, or the emotional nuances that shape estate planning. It cannot anticipate the “what-ifs” that attorneys deal with daily.

Consider just a few common scenarios:

  • A will leaves a home to a nephew, but the home is sold before death. Is the nephew entitled to something else?
  • A child develops substance-use issues after a trust is created. Should the trust include protection or restrictions?
  • Parents want to treat children equally, but one child receives significant lifetime gifts or caregiving support. Should the estate reflect that?

These are human questions, not software questions.

AI Also Makes Mistakes

A phenomenon often called “AI hallucinations” occur when an AI system provides answers that are simply wrong. In the legal world, this has already caused real-world harm. Several attorneys across the country were sanctioned after filing briefs containing cases, quotes, and citations entirely fabricated by AI.

Estate plans created by AI can contain similar errors—incorrect statutory language, references to nonexistent laws, or clauses that contradict one another. Unlike a wrong restaurant suggestion, these mistakes can have lasting legal and financial consequences for your family.

Human Estate Planning Needs Human Experience

Early GPS systems sometimes sent drivers into ponds. AI is no different: its output is only as good as its training, and it often fails in unexpected ways. Estate planning requires judgment, precision, and a deep understanding of human circumstances. It is as much about protecting relationships as it is about distributing property.

AI is a powerful tool, and it has its place—education, brainstorming, drafting outlines, gathering general information. But it cannot replace the experience, responsibility, and foresight of a qualified estate planning attorney.

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Year-End Estate Planning Wrap-Up   

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As the year draws to a close, it’s worth taking a step back to assess the legal framework that governs how your assets will be managed during life and transferred at death. Many financial and tax-related decisions, including retirement account contributions, charitable gifts, and certain trust funding activities must be completed by December 31 to maximize potential tax benefits and ensure estate planning documents continue to reflect your goals.

A thoughtfully maintained estate plan is not a “set it and forget it” exercise. It should evolve with life circumstances, family needs, and changes in federal and state law. Periodic reviews every three to five years help ensure your estate plan continues to protect those you love and operates as intended when it matters most.

Review – and Update if Necessary

If you already have an estate plan in place, you are ahead of the curve. However, even a well-crafted plan requires ongoing attention. Unless your documents were prepared or reviewed within the past year, it’s time for a checkup. Laws governing estates, trusts, and taxation evolve, and life rarely remains static. Marriages, divorces, births, deaths, relocations, and even changes in asset composition can all impact how your plan functions.

A comprehensive review should include your last will and testament, any revocable or irrevocable trusts, durable powers of attorney, and healthcare directives. Ask yourself:

  • Do these documents still reflect my current wishes and family situation?
  • Have there been any major life events that warrant revisions?
  • Have I moved to another state where probate, homestead, or tax laws differ?
  • Have I acquired new assets or sold property referenced in my plan?

Working with an experienced estate planning attorney ensures your documents remain compliant with current law and intentions are not just clearly expressed but are also enforceable.

Did Your Trust Cross the Finish Line?

Creating a trust is an important step, but it is only effective once it has been properly funded. If you established a revocable living trust in 2025, have you completed the process of transferring assets into it? Deeds, account registrations, and beneficiary designations must be updated to reflect ownership by the trust.

If you pass away before funding is complete, those unfunded assets may remain subject to probate, precisely what you sought to avoid by creating a trust in the first place. Year-end is an excellent time to verify that bank accounts, brokerage accounts, real property, and business interests are properly titled.

Additionally, review any “pour-over” provisions in your will, which are designed to transfer remaining assets into the trust upon death. These provisions work best when the bulk of your estate is already held or designated for transfer to the trust.

Are Your Powers of Attorney and Healthcare Directives Current?

Equally important are incapacity documents — durable power of attorney and healthcare directives. These instruments authorize trusted individuals to act on your behalf in managing financial affairs and making medical decisions should you become unable to do so.

The designations can become outdated over time. Agents may move out of state, become incapacitated themselves, or simply no longer be the right choice. If your chosen representative has retired to Florida while you reside in Nassau County, for example, they may not be able to assist you effectively in an emergency.

An updated power of attorney and healthcare proxy can spare loved ones significant stress and expense. Without these documents, family members may be forced to petition a court for guardianship to manage your affairs. This is a time-consuming, expensive, and emotionally draining process, easily avoided.

Review who you have named, confirm their willingness to serve, and  be sure they have current copies of your documents.

Review Beneficiary Designations

One of the most common pitfalls in estate planning involves outdated beneficiary designations. The beneficiary designations on life insurance policies, retirement plans, annuities, and certain investment accounts override whatever instructions are contained in your will or trust.

For instance, if an ex-spouse remains listed as the beneficiary of your life insurance policy, that person will receive proceeds upon your death, no matter what’s in your will or how much time has elapsed since you’ve had any contact with them. The insurer is legally bound to honor the most recent signed designation on file. Many people go to court on this issue and do not get the results they hoped for.

Take time before year-end to review all beneficiary forms and ensure they are consistent with your overall estate plan. Confirm not only your primary beneficiaries but also contingent (secondary) beneficiaries in case your first choice predeceases you.

End of Year Financial Considerations

Required Minimum Distributions (RMDs)

If you are age 73 or older, you are required to take annual distributions from traditional IRA and certain retirement accounts. Failure to withdraw the appropriate amount can result in a penalty equal to 25% of the amount that should have been distributed.

Beneficiaries of inherited IRAs must also take distributions under the SECURE Act rules, which generally require the account to be emptied within ten years of the original owner’s death (with certain exceptions for eligible designated beneficiaries). Reviewing your RMD status before year-end ensures compliance and helps manage your taxable income effectively.

Flexible Spending Accounts (FSAs)

If you participate in a Flexible Spending Account through your employer, review your plan’s “use it or lose it” provisions. Some plans allow a short grace period while others permit only a small carryover amount. Any funds left unused beyond the permitted deadline are forfeited. Verify your account rules now so you can plan eligible expenses accordingly.

Tax Planning Opportunities and Year-End Charitable Giving

Year-end is also a time for strategic tax planning. Charitable giving can serve both philanthropic and financial purposes, reducing taxable income and helping causes important to you.

Whether you prefer to make cash contributions, donate appreciated securities, or establish a charitable trust, completing your gifts before December 31 is key to claiming the deduction for the current tax year. Donating highly appreciated stock can be particularly effective — you avoid paying capital gains tax on the appreciation and still receive a charitable deduction for the fair market value of the asset.

Qualified Charitable Distributions (QCDs)

Individuals aged 70½ or older can make Qualified Charitable Distributions of up to $108,000 directly from an IRA to a qualified charity in 2025. A QCD counts toward your Required Minimum Distribution but is excluded from your Adjusted Gross Income. This strategy can help lower overall taxable income and may also reduce the impact of other income-based taxes or Medicare surcharges.

It is essential, however, that the funds be transferred directly from the IRA to the charitable organization. Personal withdrawals do not qualify. Always consult your estate planning attorney to ensure compliance.

Annual Exclusion Gifting

Under current federal law, individuals may gift up to $19,000 per recipient annually ($38,000 for married couples) without incurring gift tax or affecting the lifetime exemption amount. These gifts can be an effective way to reduce the size of your taxable estate while providing meaningful financial support to family members or other beneficiaries.

In addition, direct payments for another person’s tuition or medical expenses made directly to the educational or healthcare provider  do not count toward the annual exclusion or lifetime exemption. These strategies can help transfer wealth efficiently while maintaining flexibility and control.

Estate Planning as a Living Framework

An estate plan is more than a collection of documents — it is a living framework that guides your financial and personal legacy. A properly prepared and maintained plan provides clarity for your loved ones, minimizes administrative burdens, and helps avoid unnecessary court involvement.

At its core, estate planning is an act of care. It ensures that the people you trust have the authority to make decisions on your behalf and that your assets are distributed according to your wishes. It also protects your heirs from confusion, conflict, and unnecessary expense.

If you have yet to formalize your estate plan, there is no better time to start. And if you already have one, take advantage of this year-end season to confirm that your plan remains legally sound, properly funded, and aligned with your current circumstances.

Estate planning is not a one-time task but an ongoing process that, when approached proactively, can provide peace of mind for years to come.

As you wrap up 2025 and prepare for the new year, make estate planning a priority alongside your other year-end financial to-dos. By reviewing your documents, confirming your beneficiaries, funding your trusts, and making strategic gifts, you ensure your estate plan continues to reflect your values and protect those you love.

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