medical assistance

My Spouse Needs Nursing Home Care -- Do We Need to Divorce?

When I am asked about nursing home care for married people, one of the questions that almost always comes up is this: “Do we have to get divorced?” Or, in a similar vein: “Should we get divorced?”

There is a misconception about long-term care that has been around for a long time, which is that a married couple should or must get divorced when one spouse needs care. It’s like an urban legend that just won’t die. And it adds unnecessary stress in a situation that is already very stressful for families. So, let me put it to rest once a for all:

No, you don’t need to get divorced.

And, most people shouldn’t get divorced.

Here’s why: If you need to rely on Medical Assistance (also known as “Medicaid”) to help pay for long-term care in a nursing home, assisted living facility, or at home, the program requires the ill spouse to spend their assets down to just $3,000. But the program also provides for a community spouse asset allowance that is much greater than that. This year, the community spouse asset allowance is $126,420, and the figure is adjusted annually based on the rate of inflation.

In addition, there are certain benefits to staying married. For example, the well spouse can remain living in the marital home, and the home will not be counted toward either spouse’s asset limit. The well spouse may also receive an additional income allocation from the income of the ill spouse if the well spouse’s income is too low, which is helpful in situations where the ill spouse was the primary earner and may be receiving a larger amount in pension or social security income. The well spouse may also be allowed to keep additional income producing assets if their income falls below a certain minimum threshold. Moreover, the program allows married couples to annuitize assets, converting available assets to an income stream for the well spouse, and the well spouse’s income is not required to be spent on care costs. So, for all these reasons, staying married is often more advantageous than getting divorced.

So, why does the myth that people have to get divorced persist? It may be because in some unique situations, divorce is the best option. For example, in a second marriage where the couple signed a prenuptial agreement, a divorce may provide for an appropriate redistribution of assets that better protects and provides for the well spouse. But these cases are generally rare and require the advice of a knowledgeable attorney to determine if divorce is appropriate. In most cases, divorce is simply not the best option.

If you or someone you knows is in this situation and is wondering what to do, contact an experienced elder law attorney for advice.

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2019 By the Numbers: Key Figures in Estate Planning and Elder Law

2019 By the Numbers: Key Figures in Estate Planning and Elder Law

A summary of the key facts and figures you need to know for estate planning and long-term care planning in 2019.

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Medicaid Estate Recovery in the News

Until recently, Minnesota was one of the states that recovered not just long-term care services but all Medicaid services provided to persons 55 and older.  But no one really noticed.  Why?  Because until 2014, to be eligible for recoverable Medicaid services you had to meet strict asset eligibility rules.  For instance, for a person to qualify for long-term care services, you cannot have more than $3,000 in available assets.  For these folks, estate recovery didn’t seem so bad because there wasn’t much to recover at the end of that person’s life.  But in 2014, Minnesota participated in the Medicaid expansion under the ACA (“Obamacare”).  This expansion lifted the asset limitation for folks under 65, greatly expanding the number of people who qualified for insurance paid for through Medicaid.  Suddenly, many more people were enrolled in a program for which estate recovery rules applied.

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