Theodore G. Fodera, New York lawyer dedicated to elder law and estate planning including guardianship petitions, powers of attorney, health care proxies, Medicaid planning and irrevocable trusts for asset protection. Serves families in Nassau and Suffolk Counties on Long Island

67-18F 195th Lane
Fresh Meadows, NY 11365
Phone: (718) 454-8603
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Eligibility in a nursing home

Married Persons

(For simplicity, the assumption is made here that the husband is the one who needs nursing home care. The same rules apply, however, if the wife is the one who needs care in a nursing home.)

Husband's Resources:

He may retain $4,150 in assets in only his name. He may also have a $1,500 burial fund, and he may have a pre-paid funeral if the money is in an irrevocable account. At death, any balance that remains in the plan after funeral expenses is payable to Medicaid if it provided services during his lifetime.

Couple's Income:

The husband may retain $50 from his Social Security account as a "personal needs" allowance.

The premium for any Blue Cross or similar supplement to Medicare coverage can also be paid with Social Security funds.

His wife is entitled to a minimum of $2,489 per month in income. If her own personal income is not this high, she is entitled to as much of her husband's income as needed for her to reach that level.

If the wife's monthly Social Security payment, pensions and other income total $1,550 per month, she is entitled to $939 from her husband. If this total income from Social Security and other sources is $1,989 per month, he gets to keep $50, his wife gets $939 from him, and the $1,000 that remains goes to reduce the amount that Medicaid must pay on his behalf at the nursing home.

If the wife's income from Social Security and other sources is $2,489, her husband still gets to keep $50 from his monthly income, but all the rest of his income from Social Security and other sources goes to reduce the amount that Medicaid must pay on his behalf at the nursing home.

If the wife's monthly income is more than $2,489, she is "asked" to contribute 25% of the excess toward her husband's care. Thus, a wife whose monthly income was $2,689 would be asked to contribute $50 monthly toward her husband's support.

Wife's Resources:

In addition to their home, coop or condominium, if they have one, the wife may retain in her own name, or in her name and her husband's, a minimum of $74,820 in assets and a maximum of $99,540, an amount that Medicaid describes as the "Community Spouse Resource Allowance (CSRA)."

The precise CSRA amount depends on the extent of the couple's resources when the husband developed the illness that forced him to enter a nursing home:

If the couple had less than $149,640, the wife is able to retain $74,820, no matter how much less they had.

If the couple had more than $149,640 but $195,080 or less, the wife may retain half of what they had.

Thus, to retain $95,000, the couple's assets must have totaled $190,000. In practice, however, a spouse is generally allowed to retain the $99,540 amount.

Wife's Total Income Allowance:

If the wife's income and the husband's income together total less than $2,489, the wife may ask to retain more than $99,540 in assets so that the interest on these additional assets can raise her income level to $2,489.

A woman with a monthly income of $2,389 might ask to retain $129,540. The additional $30,000, invested at 4%, would yield $1,200 per year, or $100 per month. The interest would then raise her monthly income to $2,489. Medicaid generally approves requests to retain additional assets in these circumstances.

Spousal Refusal:

Once there is enough income available for the wife to receive $2,489 per month, the wife must sign a spousal refusal if she wishes to retain more than the allowable maximums for income and assets. The husband must sign an assignment of support, a document that authorizes Medicaid to step into his shoes and file suit in court to force his wife to provide him with the financial support that is rightfully his.

Once Medicaid has processed spousal refusal, it has the option to go into court and use the woman to obtain reimbursement for the fund it has spent on her husband's behalf. It is never possible to predict when Medicaid may sue and when it may not. In general, however, the greater the assets the wife has retained, the more likelihood that the suit will be filed.

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