Connecting Medicaid Planning to matters of the heart may seem unconventional, but the law is surprisingly sympathetic to your primary love relationship. New York State law allows transfer of assets to your spouse to obtain Medicaid for long term care. These transfers are not penalized. Even if the total assets exceed community spouse guidelines, a “Spousal Refusal” form may be filed which allows the ill spouse to receive Medicaid without considering the healthier spouse’s assets and income. No other relationship is treated with the same compassion. For example, with Nursing Home Applications, Medicaid penalizes most asset transfers to children if the purpose of those transfers is to attain financial eligibility.
An elder law attorney’s office is an unlikely venue to discuss a romantic couple’s journey towards wedded bliss. But it happens. Long-term cohabiting companions and formerly divorced spouses will sit across from me and lament on how one partner’s health issues will have major pocketbook implications. I usually nod and carefully mouth these words, “you may or may not want to consider getting married.” With that, I stop, avert my eyes for a second and wait for the lovebirds to laugh uncontrollably or solemnly take each other into their arms and profess their undying love. There is a sound planning reason to walk down the aisle. Spousal Medicaid protections will preserve more of the couple’s assets. Remaining unmarried affords no Medicaid asset protection. Asset transfers from one companion to the other is a penalizable gift for Nursing Home Medicaid. Besides the wedding cake, another perk of marriage involves taking a spouse’s higher Social Security amount for themselves after a spouse’s death.
We understand that there may be valid reasons why a couple decided to remain unmarried for forty years. Complicated family dynamics, step-children, and other fun social experiments may be lurking. After tying the knot and dancing that first dance, a couple can work on Medicaid planning and set up a Trust to ensure that both spouses’ families are recognized and protected.
The unromantic view of Medicaid Planning and marriage is that New York State does not want the ill spouse’s decline to financially decimate the healthier spouse. A married couple is considered one unit under the law. Each county in New York has discretion to seek financial contributions from the spouse who has received the bulk of the family’s wealth to pay for some of the long-term care. These contributions may negotiated and counties usually do not want to place unreasonable burdens on spouses. As a matter of governmental fiscal responsibility, it is generally good policy to set rules that limit a very wealthy family’s access to an entitlement program. That said, the massive costs of long-term care can wreak havoc on most families.
You probably will not see “Love and Medicaid” on the Hallmark Channel any time soon and that is too bad. Just know that elder law attorneys are no strangers to cupid and his arrow.