08 Jan CAN I KEEP MORE THAN THE COMMUNITY SPOUSE RESOURCE ALLOWANCE?
When a married person needs nursing home placement, the spouse living at home (Community Spouse) is often told that he or she can only retain assets up to the Community Spouse Resource Allowance (CSRA). In 2022, that number is $137,400.00. The institutionalized spouse can only have $2,000.00 of assets. If the combined assets of both spouses are not much greater than the CSRA, there are many strategies that can be used to bring the combined assets below the CSRA. However, if the combined assets are far in excess of the CSRA, then a technique known as ‘Spousal Refusal” is typically the best solution.
Here is how it works. Under ESS 1640.0314.01, assets available to the Institutionalized Spouse are the remaining assets, after subtracting the CSRA from the couple’s total assets. If this number exceeds the program limit, then it must be spent down before the Institutionalized Spouse qualifies for Medicaid. However, if the assets are declared and verified, the Community Spouse may refuse to make those assets available to the Institutionalized Spouse. At that point, the Institutionalized Spouse assigns his or her support rights to the state and obtains Medicaid benefits for the nursing home.
One disadvantage of using Spousal Refusal is the inability of the Community Spouse to obtain Spousal Diversion of income, once Spousal Refusal is declared. ESS 1640.014.01. However, this rule can be circumvented by a Court Order of Support, typically obtained in a Family Court or through a Guardianship proceeding.
It should also be noted that if the Community Spouse refuses to disclose all of his or her assets, Medicaid for the Institutionalized Spouse will not be approved. In addition, the State has the right to pursue recovery from the Community Spouse. ESS 1640.0314.03.
Lastly, a Prenuptial Agreement cannot be used to separate Spousal assets. In that case, both spouse’s assets will be counted to determine if the assets exceed the CSRA. ESS 1640.0314.02.
If you would like more information on Spousal Refusal, feel free to contact the Elder Law Center of Mondschein and Mondschein, P.A. to request a free telephone consultation.