Elder Law & Estate Planning Attorneys
Medicaid laws provide special protections for the spouse of a nursing home resident to make sure he or she has the minimum support needed to continue to live in the community. In Medicaid jargon, the healthy spouse is known as the “community spouse.”
The so-called “spousal protections” work this way: if the Medicaid applicant is married, the countable assets of both the community spouse and the nursing home spouse are totaled as of the date of nursing home admission. This is sometimes called the “snapshot date” because Medicaid is taking a picture of the couple’s assets as of this date.
The community spouse may keep one-half of the couple’s total countable assets up to a maximum of $126,420 (in 2019). Called the “community spouse resource allowance,” this is the most that a state may allow the community spouse to retain. The least that a state may allow a community spouse to retain is $25,284 (in 2019). The income of the community spouse will continue undisturbed; he or she will not have to use his or her income to support the nursing home spouse receiving Medicaid benefits.
But what if most of the couple’s income is in the name of the nursing home spouse, and the community spouse’s income is not enough to live on? In such cases, the community spouse may be entitled to some or all of the income of the nursing home spouse. How much the community spouse is entitled to depends on what Medicaid determines to be a minimum income level for the community spouse. This figure, known as the “minimum monthly maintenance needs allowance,” is calculated for each community spouse according to a complicated formula based on his or her housing costs.
If the community spouse’s own income falls below his or her minimum monthly maintenance needs allowance, the shortfall can be made up from the nursing home spouse’s income. If there is still a shortfall after shifting the nursing home spouse’s income to the community spouse, the community spouse may be permitted to keep assets above the community spouse resource allowance. Furthermore, it is often possible to get the actual minimum monthly maintenance needs allowance figure increased by filing an appeal with the Department of Human Services and going through a process known as a “fair hearing.”
Note that we usually encounter the circumstances described above during what is called “crisis Medicaid planning;” that is, where the planning is being done at the time the nursing home spouse is being admitted to the nursing home, or has already been admitted to the nursing home. One of the goals of crisis Medicaid planning is to maximize the income and assets retained by the community spouse. If planning had been done earlier, before the crisis occurred, the community spouse would likely retain far more than described above.
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Levandowski & Darpino
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