Estate Planning

Special Needs Trusts

What is the Difference between a First-Party Special Needs Trust and a Third-Party Special Needs Trust?

by Rania Combs

When planning for the future of a loved one with special needs, understanding the differences between a First-Party Special Needs Trust and a Third-Party Special Needs Trust is crucial. Both types of trusts serve to protect the beneficiary’s eligibility for government benefits, but they are funded and managed differently. This article aims to clarify these differences to help you make an informed decision.

First-Party Special Needs Trusts

A First-Party Special Needs Trust, also known as a “self-settled” or “(d)(a)(4)” trust, is funded with the beneficiary’s own assets. This might include money from a personal injury settlement, an inheritance, or other sources of income or assets that belong to the individual with disabilities.

Before December 13, 2016, individuals with special needs could not establish a self-settled special needs trust for their own benefit. However, the Special Needs Trust Fairness Act changed that. Now, a mentally competent individual with disabilities, a parent, a grandparent, a guardian, or a court can establish a self-settled trust for a person under the age of 65 who is disabled according to the Social Security Administration’s definition.

First-Party Special Needs Trusts must be irrevocable. They also require a pay-back provision. This provision ensures any assets remaining in the trust when the beneficiary dies are used first to reimburse Medicaid for benefits provided to the disabled beneficiary during the trust’s existence. This pay-back provision is a critical feature that differentiates First-Party Special Needs Trusts from Third-Party Special Needs Trusts.

Third-Party Special Needs Trusts

In contrast, a Third-Party Special Needs Trust is funded with assets owned by third parties, such as parents, grandparents, or other family members, and not the beneficiary. This type of trust can be established during the lifetime of the person making the gift or through a will, which means it won’t receive assets until after the death of the person making the gift.

Almost any person except the beneficiary or their spouse can create a Third-Party Special Needs Trust. However, it is possible to create a special needs trust for one’s spouse in a Will. The creator of the trust uses their own money or other assets to fund the trust. Unlike First-Party Special Needs Trusts, there is no age limit for the beneficiary.

One of the significant advantages of a Third-Party Special Needs Trust is that it does not require a pay-back provision. This means that the creator of the trust can decide who will receive any remaining assets after the beneficiary’s death, providing more flexibility in estate planning.

Key Differences at a Glance

  • Funding Source: First-Party Special Needs Trusts contain the beneficiary’s own assets, while Third-Party Special Needs Trusts contain assets from third parties.
  • Establishment: An individual with disabilities (if mentally competent), a parent, grandparent, guardian, or court can establish a First-Party Special Needs Trust. Someone other than the beneficiary can estalish a Third-Party Special Needs Trust.
  • Pay-Back Provision: First-Party Special Needs Trusts must include a pay-back provision to reimburse Medicaid. Third-Party Special Needs Trusts do not require this provision, which allows the creator to direct what happens to the remaining assets after the beneficiary dies.


Understanding the distinctions between First-Party and Third-Party Special Needs Trusts is essential for effective special needs planning. For guidance on establishing a First Party or Third Party Special Needs Trust, consult with Rania Combs Law. Our knowledge ensures your trust is compliant and effective in safeguarding your assets. Connect with us today to secure your future while maintaining your benefits. 

About Rania

Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.

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