My Spouse Just Died – Now What?

by Daniel J. Eccher, Esq.

The period immediately following the loss of a loved one can be overwhelming emotionally. The most important thing to figure out immediately is how to carry out your loved one’s wishes as to organ donation. Next, get in touch with family and close friends – the people you don’t want hearing about it from an obituary or the media, the folks you turn to when you need support. Then, you need to make arrangements for the body. Did he or she want to be buried or cremated? If the latter, what did he or she want done with the ashes?

If you don’t know what funeral home to use, you may want to ask friends and family for advice.

The next step is planning for the ceremony (if any). Did he or she want a religious or secular ceremony, or perhaps just a “Celebration of Life” party? If he or she was a veteran, the VA web site has lots of information about options:

Once the ceremony is arranged, you’ll want to let people know when and where it is. Usually people announce it in a formal obituary. If you don’t feel up for that, you can ask another family member or close friend for help. Alternatively, you can just use a simple announcement.

After the funeral, you’ll want to start thinking about the legal effects of the event. You’ll need more than one copy of the death certificate (I would recommend getting at least three). Next, you’ll need to inform the Social Security Administration, insurance companies, and banks. Then, you should consider contacting an experienced probate attorney. If you don’t already have a relationship with one, we would be happy to consult with you.

For a list of things that we will need, check out Ms. Wagley’s blog post on the topic here:

For a more thorough checklist of what to do after the death of a loved one, follow this link:

Do you want to make some of this process easier for your loved ones before you die? Check out our page on estate planning:

Do you and your spouse know your tenancy status?

by Tavis R. Hasenfus, Esq.

Of course you do — you own your home.  Well, that’s not exactly what I was asking.  Sure, you have your deed that unequivocally declares that you and your spouse own your property together, and, after years of keeping your lawn pristine, you know your boundaries like the back of your hand (or do you? — but we will save that for another day). The question is, do you know if your deed contains those two magic words which keep your spouse from needing to step into probate court after you pass away to retain what was always known to be his or hers?

In other words, does your deed say that you and your spouse are Joint Tenants, meaning the real estate will pass automatically to the survivor upon the death of the first spouse? Or, does it leave these magic words out, thereby leaving your spouse’s interest in the real estate to pass through his or her Will or, worse yet, through intestacy – and perhaps to a relative you’ve never met?

A simple review of your deed can answer this important question and help you and your spouse prepare for the future.

There are certainly reasons why one would want to hold real estate with their spouse as tenants in common instead of joint tenants, but it is important to determine how the real estate is currently being held while both spouses are in good health so that, if needed, a simple deed can take the place of a court filing — or worse.

New ABLE accounts – an option in special needs planning

Mo & downs syndrome childCollege savings plans, often referred to as “529” plans (“NextGen” plans in Maine) have been around for a long time, as a way for parents to set aside funds for a child’s education. These accounts receive favorable tax treatment and have been quite popular with parents and grandparents.

However, this option is generally not useful for parents and grandparents of special needs children, who may never pursue post-secondary education because of their disabilities. These families also worry that a 529 plan will cause the child to lose benefits such as SSI and MaineCare (Medicaid).   Just the same, these disabled children are likely to need funds in the future for things other than college, such as adaptive equipment, transportation, health and wellness activities, and job training.

Soon these families will have the opportunity to set money aside for their disabled children in an account known as an “ABLE” account. “ABLE” stands for “Achieving a Better Life Experience” and is a federal law enacted in 2014.

These are some of the features of an ABLE account:

  • The funds in the ABLE account will grow tax free.
  • Distributions for “qualified expenses” (such as the things referred to above) are not taxed. (Non-qualified expenses, however, are taxed and subject to a 10% penalty.)
  • As much as $14,000 per year can be contributed each year to the beneficiary’s ABLE account.
  • Funds in the ABLE account, up to $100,000, will not affect the beneficiary’s eligibility for SSI or MaineCare (Medicaid).
  • Any funds remaining in the ABLE account when the beneficiary dies must pay back the state of Maine (or other state where the beneficiary lives) for what the state has paid for the beneficiary under the Medicaid program.

Before this savings option becomes available to special needs children and their families, the state must establish its own ABLE account program. This is likely to occur through the Financial Authority of Maine (FAME), which administers the NextGen program.   Hopefully this will happen soon, so that special needs families have the same opportunities to save for a disabled child’s future as they do for non-disabled children.

Medicare coverage when you are in a foreign country

By Sally M. Wagley, Maine elder law attorney

Many retirees look forward to travel, including international travel. But don’t assume that Medicare or your Medicare supplement policy will cover your care in another country, without the purchase of additional insurance.


Medicare has extremely limited coverage for international travel, even if there is an emergency. Here’s what you need to know:

1. Medicare Part A will not cover care outside the US unless: a) the nearest hospital is in a foreign country rather than in the U.S. (e.g. Canada or Mexico) or 2) you are traveling through Canada to or from Alaska by the most direct route.
2. Medicare Part B will only cover services outside the U.S. if you are on board a ship which is less than six hours away from a U.S. port and within territorial waters adjoining U.S. land.
3. Some Medicare supplement plans and Medicare Advantage plans may cover care while you are traveling outside the U.S. – check your policy –but probably only during the first month or two of your trip.
4. Consider purchasing additional coverage through policies available from private companies. The U.S. Department of State has information on this at

Note: Medicare does cover care in U.S. territories such as Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa and the Northern Mariana Islands.

Under no circumstances will Medicare pay for your care if you are living in a foreign country. Consider the following:

1. If the country has a strong national health plan, you pay be able to pay into the plan and receive coverage.
2. Look into “expatriate” health insurance plans available from private companies.
3. If you are moving to a place which is remote or has poor local health care, look into evacuation coverage.
4. Make sure the coverage includes any preexisting conditions for which you might need care.
5. Think twice before cancelling your Medicare “B” coverage. If you later move back to the U.S., you will incur penalties and have to pay a significantly higher premium.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Home Care: My Mother’s Story


By Sally M. Wagley, Maine elder law attorney


My mother, pictured here as a young woman, was healthy and active for a long time. But in her mid 80’s, she developed peripheral artery disease, resulting in the amputation of her leg.

The silver lining in this story is that my mother continued to live independently until her death, just short of her 91st birthday. This, in spite of the dire predictions of her rehabilitation team, who insisted that Mom have 24-hour care, preferably in a facility. Mom wanted to go home and we hired 24- hour care from a local agency. But after three days the workers had little to do. Mom, thanks to years of exercise and a strong will, was able to transfer from her bed to her wheelchair without help and to fix herself simple meals.

We replaced the workers with non-medical help from another agency, Neighbors, based in Brunswick. These workers, who became like family, came in three days a week, two hours a day, to do light housekeeping and laundry and prepare lunch. In addition, an RN from another agency, CHANS, came in once or twice a week to change bandages, take vital signs and check Coumadin levels. It was also helpful that Mom lived in an apartment in senior housing, where the evening meal was served and emergency response was available. Thus, the six to ten hours a week of in-home services (at a far lower cost than institutional care) enabled my mother to remain at home.

This happy ending is not possible for many Maine seniors, who cannot pay privately for services. A recent Portland Press Herald article reported on serious underfunding of home care and long waiting lists. Government reimbursement rates have not increased since 2005. Workers receive low wages, leading to labor shortages in. This short-sighted policy is inhumane and costs the taxpayer more: an average of $558 per person per month, versus an average of $4150 for a nursing home resident.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Bringing suit against a Maine nursing home for negligence, abuse or neglect

By Sally M. Wagley, Maine elder law attorney


Elders who reside in nursing homes are very vulnerable. Most are heavily dependent on others for help with their daily activities. Many are cognitively impaired and unable to speak for themselves. Nursing homes in Maine and elsewhere are often understaffed and struggle to meet the needs of their residents. As a result, residents may experience problems such as pressure ulcers (bed sores), malnourishment, dehydration, falls and elopement. This can lead to a needless suffering and even death.

The first step, when encountering abuse, neglect or negligence, is to report it to the Maine Department of Health and Human Services’ licensing division, who will promptly investigate. Another resource is Maine’s Long Term Care Ombudsman, which will advocate for you or your family member and work with the facility to correct the problems.

Increasingly, however, residents and their families are going further: seeking the assistance of Maine elder law attorneys and personal injury attorneys in bringing suit against Maine nursing homes to get money damages for the elder. These attorneys use, as a basis for the law suit, the federal and Maine nursing home laws which set standards for nursing homes.

Unlike the medical malpractice case, which usually concerns a discrete act by a health care provider, the nursing home case typically involves a pattern of inadequate care over a period of time. An attorney who is skilled in Maine nursing home cases will gather evidence by interviewing the resident (if the resident is competent), the family and the staff, and will also review the patient’s chart.

If you or a family member have been harmed as a result of inadequate care in a Maine nursing home, we will be glad to evaluate the case and partner with skilled counsel to bring a suit for damages.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Understanding Long Term Care Insurance

By Sally M. Wagley, Maine elder law attorney


Have you been advised to purchase long term care (LTC) insurance? Before making such a purchase it is important to understand what such insurance will and will not cover. These are some of the things you need to know:

Nursing home-only coverage vs. coverage of assisted living and home care: Ideally, the policy should cover these different types of care. Most people prefer to be cared for someplace other than a nursing home.

Benefit “triggers”: Most policies will not start to pay out until you are very disabled, mentally or physically, and your care needs are high. These policies require that you be at the point that you need as substantial amount of help with at least three activities of daily living or be so mentally impaired that you are a danger to yourself or others.

Daily benefit rate: The policy will cover up to a certain amount per day: for example, $150, $200 or $300 per day. The higher the daily benefit rate, the more the policy will cost. Currently, nursing home care in Maine costs an average of $8000 a month, and some facilities charge as much as $10,000. Thus, your LTC insurance will likely not cover the full cost and you will need to use some of your income or savings.

Elimination period: Most policies will not start covering the cost on day one. The policy will require that you receive care for a certain number of days before it will start to pay: for example 30 to 90 days. This means that you will need to draw on your savings until the elimination period is over.

Length of benefit period: There are few if any policies these days that will cover you for your lifetime. Policies will generally cover your care for two to five years. This means that if you need care for longer than this, you will need to start paying from your savings.

Inflation protection: Long term care costs increase every year. If you decide to buy LTC insurance, you should consider opting for inflation protection so that years from now if you need care, the benefit amount will more closely match the cost.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Medicare patients in nursing homes CAN leave for a special event

By Sally M. Wagley, Maine elder law attorney

Are you or a family member a Medicare resident of a skilled nursing facility, perhaps rehabilitating after a hospital stay? Have you or your relative asked to leave the facility for a few hours or a day for a special event or purpose such as Christmas dinner or a short visit home? Frequently, to the great disappointment of the resident, the facility may tell the resident that if he or she leaves, even for a few hours, he or she will lose Medicare coverage.

This is not accurate. Medicare rules state: “An outside pass or short leave of absence for the purpose of attending a special religious service, holiday meal, family occasion, going on a car ride, or a trial visit home, is not, by itself evidence that the individual no longer needs to be in a skilled nursing facility for the receipt of required skilled care.” As long as the resident returns to the facility by midnight, the facility can bill Medicare for the day’s stay. Medicare rules state that it is “not appropriate” for a nursing home to tell a resident otherwise.

In short, you should feel free to talk to nursing home staff about a short visit out of the facility. The nursing home staff may have legitimate concerns about how such a trip may affect your health and safety; but should not refuse your request based on misinformation about Medicare coverage.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Medicare Recipients and ObamaCare

By Sally M. Wagley, Maine elder law attorney

With the launch of the government’s new health care exchanges on October 1, 2013, I have had a number of clients ask me how this will affect them as Medicare recipients. The answer is “not at all.” The exchanges are intended to serve people you don’t get Medicare: typically people who are not yet retired.

If you are on Medicare, you will continue to get your coverage the same way: You will automatically receive Medicare Part A and you will have the option of signing up for Medicare Part B by paying a premium which is automatically deducted from your Social Security check. (Some recipients opt to have a “Medicare Advantage Plan” which takes the place of Parts A and B.) You will also continue to have the option of purchasing a Medicare supplement policy and a Medicare prescription drug plan.

A stitch in time saves nine

By Patrice A. Putman, Maine elder law attorney

The old saying “A stitch in time saves nine.” makes a lot of sense. Unfortunately, too often, people don’t know that there may be a legal “stitch” needed. Below is a situation that I’ve seen. Luckily, if discovered and fixed early, a client can save a lot of time, money, and frustration.

Most married couples own their home as “Joint Tenants”. This means that when one spouse dies, the property automatically becomes owned entirely by the other spouse. Nothing needs to be done to accomplish the change in ownership. In order for this transfer of ownership to the surviving spouse to happen automatically, the deed into the spouses must expressly state the concept that the spouses own as “joint tenants” or that the surviving spouse is to automatically become the sole owner of the home.

It is also possible for a married couple to own their home jointly, but as “tenants-in-common”. The home will be owned by the spouses as tenants-in-common if the deed is not explicitly a “joint tenancy deed”. If the home is owned as tenants –in-common, the surviving spouse does not automatically end up with ownership of the entire home. Rather the half owned by the deceased spouse must go through probate and title passes according to the will of the deceased or through the laws of succession (if there is no will). The property must go through probate, a personal representative must be named and the property must then be deeded according to either the Will or intestate laws.

There are times when a new widow or widower who thought she/he owned the property as a joint tenant finds that she/he did not.

Here is a hypothetical: Husband and wife own property together. The deed says “I seller, give to you, husband and wife, a piece of property.” This deed is a tenancy in common deed, something which the spouses didn’t understand and didn’t intend. Husband dies. Wife goes to a lawyer to see if she needs to do anything with regard to probate. All the bank accounts were jointly owned (no probate needed), life insurance had a beneficiary listed (no probate needed), the IRA has a listed beneficiary (no probate needed), cars were owned jointly (no probate needed). Then the lawyer asks to see the deed, and sees that the deed is not a joint tenancy deed. Now a probate estate must be opened, heirs must be notified, if there is a Will, the original must be found and filed, probate and attorney fees must be paid and a new deed will need to be executed and recorded. If the Will says “all to my spouse” then, after the personal representative has been appointed, a new deed can transfer the deceased spouse’s share to the spouse. If there is no Will or if the Will leaves part of the estate to others, the widow who thought she owned her house entirely, may now own it partially with children, step-children or others. Either way, things just got a lot more expensive and complicated.

Here’s the simple solution: Go look at your deed(s). If your deed(s) say you own the property as “joint tenants” or if the deed is clear that the surviving owner is to be the sole owner, then you are joint tenants and when one of you dies, the property will be owned entirely by the other automatically. If your deed is not a joint tenancy deed, then you and your spouse own as tenants in common. Once you understand how you own the property, then you can decide whether it fits your needs, or whether you need to see an attorney to get advice on whether your deed fits your needs. If a fix is needed, it’s an easy fix while both of you are alive. It may be needlessly expensive and upsetting if you find out after your spouse has died that the form of ownership didn’t work to your best advantage. This is clearly a situation where a stitch in time saves nine. Go read your deed! Make sure it says exactly what you need it to say, so that it does exactly what you want it to do. If you are not sure, get help sooner rather than later!

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.