On several previous blogs, I pointed out that 42 U.S.C. 1396(p)(c ) and 42 U.S.C.(p)(e) require an affirmative act. Therefore, such actions as a gift or a disclaimer constitute a transfer.
However, as I have pointed out, an "option" is not an affirmative act. Therefore, the state's decision that the failure to exercise the elective share is a "transfer" is incorrect. The ability to exercise an elective share is an option, which is an inaction, rather than an action.
Federal pre-emption is basically the problem in New Jersey elder law, and the most egregious example is the state's misinterpretation of the word "transfer".
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© February 2012, Post 183
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