Look at the language of the agreement to determine what amount is irrevocable. Next,
determine the State statutory limit on irrevocability at the time the agreement was
created (see timetable in B.1.). If the irrevocable amount is less than the statutory
limit, the agreement is controlling. Apply the rules for burial funds and burial space,
as appropriate. If the individual set up a new agreement or added to an existing agreement
after the limit increased, the addition is irrevocable, as long as the total does
not exceed the current limit.
If the irrevocable amount is greater than the statutory limit, apply the rules described
below:
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a.
The statutory limit does not apply to any items listed in W.S.A. 445.125(4)(b). Exclude
these items from the agreement. (As of November 1, 1991, they include cemetery lots,
graves, outer burial containers preplaced into the burial excavation of a grave, cremation
urns, mausoleum spaces, grave/cemetery lot markers or monuments, or undeveloped spaces.
Prior to November 1, 1991, the statute listed cemetery lots, graves, burial vaults
preinterred in a grave, cremation urns, crypt spaces, niches, columbaria, or grave/cemetery
lot markers or monuments.) Under W.S.A. 701.12, these items are revocable. However,
they are all burial spaces according to SSA and may be excluded under the burial space
exclusion (SI 01130.400).
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b.
Determine whether the remainder of the agreement is for burial space, burial expenses,
or both, as defined by SSA.
If the remainder of the agreement is for burial space only, the agreement is irrevocable
up to the State statutory limit. This amount is not a resource. Any excess is revocable;
however, the entire excess may be excluded under the burial space exclusion.
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c.
If the remainder of the agreement is for burial expenses only, it is irrevocable up
to the State statutory limit. This amount is not a resource. However, the irrevocable
amount reduces the burial funds exclusion. If the irrevocable amount is greater than
the statutory limit, the burial funds exclusion, which would otherwise be available
to any excess revocable amount, is exhausted. Therefore, the excess is a countable
resource.
EXAMPLE: In 1998, the claimant entered into an agreement with a funeral home for funeral
services valued at $2,300. The entire agreement was designated as irrevocable. At
the time, the State statutory limit on irrevocability was $2,000. $2,000 of the agreement
is irrevocable and $300 is revocable. The burial funds exclusion is not available,
because the $1,500 maximum is reduced entirely by the $2,000 irrevocable portion of
the agreement. Therefore, the $300 revocable portion is a countable resource. In 2001,
the state limit on irrevocable agreements increased to $2,500. The $300 revocable
portion remains countable. However, the individual can create a new agreement for
up to $500 or add up to $500 to the existing agreement and the additional amount is
also irrevocable.
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d.
If the remainder of the agreement is for both burial space and burial expenses, it
is irrevocable up to the State statutory limit. Apply the statutory limit to the burial
space portion first. If the burial space portion cannot be identified, treat the entire
remainder as burial funds.
If the value of the burial space portion is greater than the statutory limit, the
excess is revocable, but it is nevertheless excluded under the burial space exclusion.
All of the burial funds portion is revocable, but the full $1,500 burial funds exclusion
applies.
EXAMPLE: In 1998, the claimant entered into an agreement with a funeral home for $3,700.
The entire agreement was designated as irrevocable. $200 was for items described in
W.S.A. 445.125(4)(b). $2,400 was for the purchase of other burial space items and
$1,100 was for burial expenses. At the time, the State statutory limit was $2,000.
The $200 for the 445.125(4)(b) items is first excluded from the agreement. This amount
is considered revocable and is a resource, but may be excluded under the burial space
exclusion. The $2,000 statutory limit is applied to the $2,400 burial space portion
first. $2,000 is irrevocable and $400 is revocable. However, this $400 may be excluded
under the burial space exclusion. The $1,100 burial funds portion is revocable, but
it may be excluded entirely because it is less than the $1,500 burial funds exclusion.
Therefore, the claimant has no countable resources.
If the value of the burial space portion is less than the State statutory limit, all
of the burial space portion and part of the burial expense portion may be irrevocable.
The burial funds exclusion available to the remaining revocable burial expense portion
is reduced by the amount of the irrevocable burial expense portion.
EXAMPLE: In 1998, the claimant entered into an agreement with a funeral home for $3,200.
According to the agreement, $2,500 was irrevocable. $1,400 of the agreement was for
burial space and $1,800 was for burial expenses. At the time, the State statutory
limit was $2,000. The limit is first applied to the $1,400 burial space portion, and
then to $600 of the $1,800 burial expense portion. These amounts are irrevocable and
are not resources. The remaining $1,200 is revocable, and therefore, a resource. However,
$900 of this amount is subject to the burial funds exclusion ($1,500 maximum burial
funds exclusion reduced by $600 in irrevocable burial expenses). Therefore, the claimant
has $300 in countable resources.