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⬇️Florida Elder Law Practice Areas ⬇️
– Medicaid Planning / Long-Term Care Asset Protection
– Estate Planning
– Probate Administration

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Transcript:
I want to talk about a Florida Medicaid planning strategy known as spousal refusal. It’s also sometimes referred to as just saying now. And this is a strategy that is most applicable in a situation where you have a married couple. And one spouse is in a skilled nursing facility or nursing home or long term care rehab, but that as as opposed to an assisted living facility or wanting to receive Medicaid care at home, so Okay, so we have one spouse in a nursing home, who would like to be eligible for Medicaid, because nursing homes cost 910 11 $12,000 plus per month, and you have another spouse who is living at home in the community and is not in need of Medicaid themselves. And what this strategy essentially entails is taking advantage of the fact that spouses are allowed to gift assets to each other without penalty. Spouses are the only two people who can give the assets to each other without penalty, one cannot gift assets to a child or to a close friend or other relative. If you do that, within five years of applying for Medicaid, you will be penalized. But for spouses, there is no penalty. And so what this strategy essentially allows you to do is transfer nearly all assets from the spouse who is in a nursing home who needs Medicaid, over to the spouse who is not applying for Medicaid, we call that person, the community spouse because they’re able to live in the community and not are not in need of long term care services. So we again, we’re transferring money over taking advantage of there’s no gift penalty. And then at that point time, were severing essentially, the financial relationship between the married couple, where you have the well spouse was now going to refuse spousal refusal, or they’re going to refuse to make their assets available to the Medicaid recipient, or the Medicaid applicant who is residing in a nursing home and will probably be in a nursing home for the rest of his or her life. And when you do that, Medicaid in Florida is not allowed to count all of these assets that are now in the name of the community spouse against the one who is demanding or applying for Medicaid benefits. Now, the drawback to this is the spouse who is in the nursing home has to assign their right to demand spousal support to the state of Florida, essentially allowing Medicaid if they were to choose to do so to step in the shoes of the Medicaid recipient, and literally sue the community spouse to demand that they support the institutionalized spouse. This is a scary possibility for a lot of Floridians. And however, what we can say is to date, it’s now February 2023. We have never heard of the state ever exercising that right. I go to all the elder law conferences I am very involved in I’m on the board of directors of the Academy of Florida elder law attorneys. I say that not to brag just that. If this was something that were happening, I wouldn’t know about it. So we can’t promise that it’s not going to happen in the future. If we were to take the side of history, we would say this is probably a acceptable risk, because Florida just doesn’t have a history of taking advantage of their right to demand support from from the spouse. The people who are uncomfortable with even that remote risk for those people sometimes we bring in a family law attorney and we put together a strategic divorce, meaning we’re divorced. We’re arranging for a legal dissolution of the marriage, not because this is a couple doesn’t love each other. But because we want to set we want to separate their assets and make it so no matter what the state of Florida is not allowed to look at the community. What was the community spouse’s assets, so sometimes the strategic divorce is kind of a way to kind of in an iron clad way…….(read more)

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Spousal Refusal | Just Say No Florida Medicaid Strategy: Protecting Resources for Elders

As we age, our healthcare needs tend to increase, and the associated costs can sometimes overwhelm our financial resources. This is particularly true for senior citizens who require long-term care. To address these concerns and provide assistance to those in need, Medicaid offers various programs to help cover the costs of healthcare services. However, navigating the complexities of Medicaid can be quite challenging, leading many seniors to seek legal advice on how to protect their assets while still qualifying for Medicaid benefits.

One such strategy that has gained popularity is known as “Spousal Refusal.” This strategy, also referred to as the “Just Say No strategy,” is specifically utilized in the state of Florida to protect resources for elders. It is predominantly employed when one partner requires nursing home care or other long-term services while the other remains at home.

The Spousal Refusal strategy involves legally refusing to contribute the “at-home” spouse’s income and assets towards the care of their partner. This approach recognizes the critical importance of preserving the well-being and financial security of the at-home spouse, who, in many cases, still requires financial support to maintain their quality of life.

Under Florida law, the Medicaid program recognizes certain allowances for the at-home spouse, known as “Community Spouse Resource Allowance” (CSRA) and “Monthly Maintenance Needs Allowance” (MMNA). These allowances protect a portion of the at-home spouse’s income and assets from being used for the care of their partner.

However, sometimes the available allowances under the CSRA and MMNA are not enough to ensure the at-home spouse’s financial support. This is where Spousal Refusal comes into play, enabling the at-home spouse to refuse complying with the Medicaid regulations that would require them to share income and assets to cover their partner’s care.

By employing the Spousal Refusal strategy, the at-home spouse can legally protect their assets and income from Medicaid’s spend-down requirements, safeguarding their financial security for their own needs and allowing them to maintain their lifestyle independently of their partner’s care requirements.

While the Spousal Refusal strategy can be an effective tool in securing financial stability for the at-home spouse, it is crucial to emphasize that it is not a one-size-fits-all solution. Each individual’s circumstances are unique, and the eligibility requirements for Medicaid are subject to change. Thus, seeking professional legal advice from Elder Needs Law experts is essential to ensure a comprehensive understanding of how to navigate the Medicaid application process, including the potential benefits and risks associated with this strategy.

Furthermore, it is important to note that although Spousal Refusal is a lawful strategy under Florida law, it may not be recognized and accepted in other states. Therefore, individuals residing outside of Florida should consult with attorneys who are knowledgeable about Medicaid laws in their respective jurisdictions to determine the best course of action and eligibility requirements.

In conclusion, the Spousal Refusal strategy offers a viable solution to elderly couples seeking to protect their assets while ensuring that the at-home spouse retains financial security. However, individuals considering this strategy should consult with experienced lawyers who specialize in Elder Needs Law to evaluate their unique circumstances and guide them through the Medicaid eligibility process, ultimately securing the best possible outcome for their long-term care needs.