Spousal Refusal and Medicaid

Question: My husband suffers from Alzheimer’s disease and may soon need a nursing home. I have been told that if he needs to go to a Nursing Home, they will take our house and I will have to give them all of his income, is this true?

Answer: No, it does not have to be. Because Medicaid is needs based program, certain income and asset requirements must be met in order to be eligible. The good news is that those requirements take into account that where there is a situation where one spouse requires nursing home care, there is often a spouse still residing in the community who depends on the joint income and assets to pay their expenses. For that reason, the Medicaid program allows certain spousal allowances. Specifically, where there is a spouse living in the community, that spouse is entitled to keep up to $3,160.50 in combined income after payments of medical premiums. What this means is that where you have a husband and wife, and one spouse requires Nursing Home care, the community spouse can keep his or her income and as much as the institutionalized spouses’ income to bring them up to $3,160.50. In addition, although the applicant is permitted to have no more than $15,450.00 in his name at the time of application (not including retirement accounts and an irrevocable pre-paid burial which are exempt and not counted towards the $15,450.00 asset limit) the community spouse is permitted to keep $126,420.00 in liquid assets plus a home. However, under New York Medicaid Law, the community spouse also has the option of signing a “spousal refusal” and so long as that document is timely filed with the application, the Medicaid agency will determine eligibility for the institutionalized spouse without considering the assets or income of the community spouse. Assuming a spousal refusal is signed the community spouse can maintain significantly more assets in his or her name without affecting the eligibility of his or her spouse. This is a particularly important provision of the law when planning for Nursing Home Care for an individual with a spouse in the community. Many of our clients are surprised to learn that transfers of assets can be made to the community spouse, and that the traditional five year look back does not apply. In practice what this means is that when faced with a crisis, planning can be done in month one and the spouse in need of care can be eligible for Medicaid the following month. 

In closing, although pre-planning is always the preferred method, Medicaid planning can be done at virtually any point in the process, ensuring that your loved one receives the care that he or she needs while minimizing the financial impact on your family.


– Robin Burner Daleo, Esq. and Nancy Burner, Esq. 

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