This article comprises the authors’ reasoning and proposal for amending the Uniform Probate Code (UPC) to provide for an elective share of a decedent’s estate for a family member who provided “substantial uncompensated care” to a decedent during life, in the decedent’s or the family member’s residence. The proposed amendment offers a modest, testamentary solution to a growing and substantial need among older Americans for long-term care (LTC). The article notes that roughly 70 percent of those attaining age 65 will need an average of three years of LTC at some point in their lives, with attendant and significant unreimbursed financial costs. The article notes a 2011 Genworth Financial survey,1 which estimates a range of these costs, annually, from $15,600 for adult day care to $77,745 for a private nursing home room.

When a family member provides that care, it usually imposes significant burdens on the caregiver, including reduced work schedules, early retirement, diminished personal health and caregiving expenses. Under current law, it’s very difficult for family members to obtain reimbursement for these expenses from the decedent’s estate, as family caregiving services are rarely provided under a contract, and the common law presumes that filial caregiving services are provided gratuitously. The authors note that a number of states have so-called “filial-responsibility” laws, which require adult children to support their parents, but these statutes are rarely enforced. The authors also recognize that a claim for caregiving services is a constraint on testamentary freedom, and they contrast American testamentary practices (which reflect a “deep commitment to donative freedom”) with family maintenance and forced heirship systems in other jurisdictions (which limit donative freedom to ensure support for family members). As they observe, however, donative freedom in the United States isn’t unlimited; decedents’ estates are subject to claims for a decedent’s debts and for an elective share by the surviving spouse.

The authors propose a limited, testamentary claim for family caregivers modeled, in part, on the UPC’s elective share for a surviving spouse2 and a provision of the Illinois Probate Act3 (authorizing a limited claim for a family caregiver’s expenses). The Illinois statute was enacted in 1988 and has been amended several times. The Illinois Supreme Court, in its 2002 decision in In re Estate of Joliff,4 resolved concerns about the constitutionality of the Illinois statute.

The proposed amendment has five principal elements: (1) the claim is available only to family caregivers; (2) the class of family members eligible for the elective share comprises grandparents, descendants of grandparents, stepchildren of the decedent or a spouse of one of these relatives; (3) the proposal follows an elective share approach, rather than a cost-reimbursement model to “support caregiving without substituting economic self-interest for love and affection…”; (4) the care must have been provided in a family residence for at least two out of the three years immediately preceding the decedent’s death; and (5) the award is based on a sliding scale (reflecting the duration of the care) and may not exceed 25 percent of the augmented estate. These elements shape the contours of the proposed new article for the UPC, Part 2A, Elective Share of Surviving Family Caregiver.

 

Endnotes

1. Genworth 2011 Cost of Care Survey 23 (2011).

2. Uniform Probate Code Sections 2-201 to 2-214 (2011).

3. 755 ILL. Comp. Stat. 5/18-1.1 (2011).

4. In re Estate of Joliff, 771 N.E.2d 346 (Ill. 2002).