Most children receiving special education services nationally are as intellectually capable as their non-disabled peers. This is borne out by the Department of Education statistics regarding special education students. So it raises the question of college for many families around the country.

BY ANNETTE HINES, ESQ.

For most of us, paying for college for our children means some combination of 529 Plans, regular savings, our current income while the children are in college, and the children working and saving themselves. But when you have children with special needs, you have an added layer of complexity in your savings plan.

Most children receiving special education services nationally are as intellectually capable as their non-disabled peers. This is borne out by the Department of Education statistics regarding special education students. So it raises the question of college for many families around the country. 

Before we can discuss the special needs aspect of a college savings plan though, we need to understand the rules in general. 529 Plans really only make sense if we start early and are (or anticipate being) in an income-tax bracket that makes the tax-free growth worthwhile. Why, you may ask, does your tax bracket matter? Couldn't you just give money to your child in a custodial account ("Uniform Transfers to Minors Act" account) which you control until the child is 21, have that taxed at the child's (low) rate, and use it to pay for college?

There are two problems with that (possible gift tax issues aside). The first problem is the Kiddie Tax. For tax year 2019, the Kiddie Tax applies if your child has unearned income exceeding $2,200, is required to file a return, isn't filing jointly, and was age:

The point is, you can't really save income taxes by giving away investment assets to your non-adult children. It may even cost you money. The second problem is how college need-based financial aid treats assets, depending upon who is the owner. Need-based college financial aid (as opposed to merit-based aid) generally reduces the amount of aid awarded, based on the assets of different persons in different ways. Student assets will reduce eligibility for need-based aid by 20 percent of the net worth of the asset. This includes assets such as custodial accounts. Therefore a $100,000 custodial account would reduce need-based financial aid by $20,000 that year. Assuming that $20,000 was spent and the account did not grow, the now remaining $80,000 account would reduce aid by $16,000 for sophomore year and so forth. 

Assets owned by parents are treated significantly better. Some parent assets are sheltered by the financial aid formula, such as the primary residence. The remaining reportable assets are assessed on a bracketed scale with a maximum rate of 5.64 percent. Again, that is per year.

Assets of grandparents and other persons are not considered at all. That sounds really good, but it isn't. Then there are trusts. Unfortunately, the FAFSA and other reporting tools are generally not sophisticated at all regarding trusts. If your child is the beneficiary of a trust, even a Special Needs Trust, it is reportable. Generally, any restrictions on trust distributions which Special Needs Trusts clearly have, or whether your child is one of many beneficiaries who share the trust, is not taken into account, and the entire trust principal is regarded as an asset of the child's, and thus subject to the 20% rule shown above.

As most know, 529 Plans can be funded by anyone with up to the gift tax annual exclusion amount per year ($15,000 in 2019), although that limit is included in the total annual gifting amount – not in addition to. You can even "front-load" a 529 by as much as five times that amount - $75,000 – and still have it qualify for the annual gift tax exclusion, but (1) it reduces your gift tax exclusion for that student in subsequent years by $15,000 until that excess first year contribution is absorbed, and (2) until absorbed, the excess contribution is still includible in the donor's taxable estate. There are also aggregate lifetime limits that vary per state – the maximum account balance in Massachusetts is $400,000. The assets grow tax-free within the Plan.

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SPECIAL CONSIDERATIONS: If a disabled student is receiving means-tested public benefits such as SSI or some forms of state Medicaid, then any cash gifts directly to the student would reduce or eliminate eligibility for those public benefits. Paying tuition only, not living expenses, directly to the school would have no impact on public benefits.

Withdrawals from 529 Plans for Qualified Education Expenses are tax-free. So unlike retirement plans, growth in these plans is not merely tax-deferred; they are tax free. However, if withdrawals are not for Qualified Education Expenses, income tax does apply and there is a 10% penalty. If your special needs child cannot use the money, there is the option to switch the beneficiary to another person if the initial beneficiary does not go to college, but the option is not limitless. Investment options are also limited, although for most people that is not a very serious concern.

What are Qualified Education Expenses? (1) Tuition and fees at accredited institutions, whether the student is full or part time. (2) Room and Board. (3) Books and supplies (even basics like pen and paper). (4) Techie items like computers, software, and internet service.

What are not Qualified Education Expenses? Anything else. But it is important to note a few things in particular that are not Qualified Education Expenses: (1) Transportation and travel. (2) Student loan repayments, even for items like tuition that do qualify as Qualified Education Expenses. (3) General electronics, cell phones, and cell phone service. (4) Fitness club memberships. (5) Health Insurance, even through the college.

The 2017 Tax Act improved 529 Plans by allowing a limited amount to be spent on tuition – and only tuition – for elementary through high school tuition. This kind of expenditure is limited to $10,000 per year. But the sooner the funds are spent (e.g., elementary school), the less useful the tax-free growth. This may be helpful if you are sending your special needs child to a private pay special needs school.

Now the big question: how are 529 Plans treated for need-based college financial aid? A student-owned or parent-owned (or if divorced, custodial-parent owned) 529 Plan is treated as an asset of the parent. That is, it is subject to the maximum 5.64% reduction rule we discussed earlier. Distributions from the 529 for Qualified Education Expenses are ignored and not treated as income.

A 529 Plan for the student owned by anyone else (like a grandparent) is ignored as an asset. So far so good, and so far, this is sounding like a great approach. But here is the bad part – any distributions from the 529 Plan are treated as untaxed income to the student and can reduce the student's need-based financial aid by up to half of the amount distributed! Ouch! That's way worse than the 5.64% reduction if it were treated as a parental asset.

Also, gifts from the grandparents to the student (whether from a 529 Plan or not), whether a cash gift or a gift by paying the tuition directly … it is considered untaxed income that can reduce financial aid by 50% of the gift. (Note that a gift by direct payment of tuition is not subject to any gift tax and is not limited to $15,000 per year, but this advantage is only of interest to the very wealthy.)

If a disabled student is receiving means-tested public benefits such as SSI or some forms of state Medicaid, then any cash gifts directly to the student would reduce or eliminate eligibility for those public benefits. Paying tuition only, not living expenses, directly to the school would have no impact on public benefits.

It is a rare family that would use lifetime irrevocable trusts to save for a child's education, as typically the only reason for putting money into an irrevocable trust for such a purpose would be if the family were creating irrevocable trusts for estate tax planning purposes, meaning a married couple with assets in excess of $22.80M. But what if you are "middle-wealthy"? You have enough funds for yourself. You'd like to set something aside for your young grandchildren for college now, rather than waiting and leaving it to them as part of your estate plan. This is a lovely gift that your grandchildren will be able to appreciate while you are living, and one that also helps your grown children as well, since you have provided some relief from the costs of college for their children.

© 2019 Special Needs Law Group of Massachusetts, PC•

ABOUT THE AUTHOR: Annette Hines, Esq. is the author of Butterflies and Second Chances: A Mom's Memoir of Love and Loss. She is a powerhouse advocate for the special needs community. Not only has she founded the Special Needs Law Group of Massachusetts, PC, specializing in special needs estate panning, where special needs families compromise 80 percent of the firm's clients, Hines brings personal experience with special needs to her practice, as the mother of two daughters, one of whom passed away from Mitochondrial disease in November 2013. This deep understanding of special needs fuels her passion for quality special needs planning and drives her dedication to the practice. For more information, please visit, specialneedscompanies.com and connect with her on Facebook, @SpecialNeedsLawGroup. Learn more about Special Needs Law Group of Massachusetts here.This article does not constitute legal or tax advice, even if you are presently a client of Special Needs Law Group of Massachusetts, PC, nor is an attorney-client relationship created by reading it. If you want legal or tax advice, you should retain a licensed attorney or tax advisor for that purpose.