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Divorcing My Spouse for Medicaid Purposes?

Earlier this week a had a client come in concerned about his wife's mental and physical decline. The wife had advancing dementia and was in the nursing home. The husband was concerned that all of their assets would be used for his wife's care. In this situation, the husband is known as the community spouse and he is allowed to own a house, a car, and up to $120,900 in countable assets in 2017. Here is a list of income and asset requirements for Florida Medicaid purposes. In this case, the husband's countable assets were above the limit to get his wife onto Medicaid.

In discussing options for protecting his assets while getting his wife onto Medicaid, the husband brought up the concept of a "Medicaid Divorce." The husband had researched this on the internet and had some questions on what this is and how it worked.

I had never actually heard or used the term "Medicaid divorce" so I thought he was referring to a planning technique we generally refer to as "spousal refusal."  Spousal refusal is a legal way to protect assets for the community spouse in certain situations. We do not take this technique lightly as it means that the husband would sign a statement saying that he refuses to support his wife. When this is done, the state of Florida would count institutionalized spouse (the spouse in the nursing home) as a single person for Medicaid purposes, which means the community spouse (the husband) would not have to "spend down" his assets until reaching the $120,900 mark.  We are frequently hesitant to bring this up as an option as there is an unsavory aspect to tell a spouse that they should sign paperwork that they are not going to support their loved ones.

As we went into it, the husband had lots of questions on the Medicaid divorce, who would know this happened, and a number of other things. After going through this for a while, I realized the husband thought that an actual divorce would occur with the Florida court system.  This could not be furthest from the truth!  We would never encourage a married couple to divorce over Medicaid/nursing home expenses. There are plenty of planning techniques to help the community spouse get their loved ones onto Medicaid, but these options do not include any kind of divorce!  The moral of the story is do not believe everything you read on the internet!  The husband was very sad that he would have to divorce his wife, and I got to explain that this was not the case at all, much to his relief!  

If you are dealing with a sick spouse or your parents are going through this, please know that you should see a Board Certified Elder Law attorney to assist with planning. It is never too late to plan and protect assets, but you would need to see a good attorney to help. We offer free monthly seminars on Medicaid and Estate Planning if you want to learn more about Medicaid, asset protection and more.

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D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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