Protecting Your Assets: Medicaid Basic Rules for a Marreid Couple

Michael H. Marks, Esq.

Michael H. Marks

Linda Law Carroll

412-421-8944

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Medicaid is a needs-based, means-tested joint Federal and state program that pays for your nursing level care when you are unable to pay for the care from your own funds. Medicaid most often pays for nursing care in a nursing home, but can also pay for care in a patient’s private home. Middle-class families can qualify for Medicaid benefits to pay for catastrophically expensive nursing care by rearranging their finances.

In return for receiving a high level of monetary benefits for nursing home care, the big disadvantages for a married couple are:

  • You both must do substantial planning and financial rearrangement of your assets to qualify,
  • You both will endure bureaucracy, paperwork and annoyance to apply and be approved, and
  • The surviving spouse (after the death of the Medicaid recipient) must plan ahead to protect assets from Medicaid’sEstate Recovery” program.

Medicaid Rules for Couples

These are the basic eligibility rules:

  1. “Nursing Facility Clinically Eligible”: To be eligible for any Medicaid paid benefits you need to be assessed and determined to need a certain level of care and assistance, referred to as “Nursing Facility Clinically Eligible.” If you are a patient already in a nursing home, this is usually obvious. If you are still residing at home and seeking Medicaid services, Medicaid will perform an assessment to determine your appropriate level of care. If Medicaid determines that you can safely stay in a personal care home and would not need nursing facility level care, then you will not be deemed medically eligible, and Medicaid will not pay. You will be approved only if Medicaid determines that you need nursing-level services.
  2. Financial Eligibility And Gifting Rules: Medicaid has a number of complex rules for determining your financial eligibility for benefits:
    1. Rule number one is that you are required to spend almost all your own money on your own care first, before they start to pay anything for you.
    2. However, rule number two is that if you give away anything of value within the five years before applying for Medicaid without receiving value in return – that is, if you make a gift – you will suffer a penalty period of ineligibility which delays the beginning of Medicaid benefits. The period of ineligibility arising from the gift corresponds to how much longer you could have paid for your own care if you hadn’t given the gift.

    Nonetheless, we use gifting techniques all the time. We just need to do so in a planned, strategic way that will be effective to accomplish the goals for you.

  3. Assets of Both Spouses Are Counted: Generally, all assets owned by both or by either spouse are counted together to start with. (In other words just taking the ill spouse’s name off of the assets doesn’t work.)
  4. Transfers Between Spouses OK: However, any asset transfered from one spouse to the other for the sole use and benefit of the other spouse is allowed. By formally transferring assets between a couple, you can protect a significant portion of the total assets and yet have one spouse be Medicaid eligible.
  5. Exemptions: You can also keep certain amount of value in certain categories of property, and still become eligible for Medicaid. Standard exemptions available to everyone can be used to safeguard some of your assets from being counted as available resources. These are often referred to as exempt, non-countable, protected resources.

    For example, you can:

    • Protect up to about $560,000 equity in a primary residence;
    • Protect an unlimited amount of value in a single motor vehicle;
    • Shelter a reasonable amount in a prepaid funeral or irrevocable burial trust account; and
    • Shield a certain amount of cash of either $8,000 or $2,400 depending on your monthly income.

    Another big exception is that IRAs or other qualified retirement plan accounts belonging to the other spouse - the “community spouse” who’s not ill and not heading toward nursing care, but remaining at home in the community - are exempt and are not counted, no matter the amount. As the community spouse, all of your qualified retirement plan assets would be excluded from this calculation.

Spend Down For A Married Person

When a married person applies for Medicaid benefits for nursing care, the key questions are:

  • How much of the assets belonging to either spouse or both must be spent on nursing care for the ill spouse, and
  • How much will the other spouse be allowed to keep, while still qualifying the ill spouse for Medicaid?

Community Spouse Resource Allowance

As the community spouse, you are allowed to keep a certain amount of the assets, called the “Community Spouse Resource Allowance,” The Community Spouse Resource Allowance consists of one half of the remaining total, but subject to a minimum and maximum. In 2017, the minimum amount that in the community spouse can keep from the couple’s combined assets is $23,844 and the maximum is $119, 220.

Under this rule, the community spouse gets to keep one half, but at least $23,844 and up to a maximum $119,220 (as of 2017) of the combined funds right at the start.

Institutional Spouse’s Share

All the remaining assets are seen by Medicaid as “available resources” belonging to or attributed to the nursing patient or “institutional spouse” that must be spent (in Medicaid’s view) before Medicaid will start to pay anything for his or her care. We work to protect those remaining assets for you rather than just spending them.

Incomes Separate

Although for spouses, your assets are lumped together, your separate incomes are treated separately. If you are the nursing home patient in a nursing facility, you have to spend almost all of your own income to pay toward the cost of your care each month, so that Medicaid only has to pay the balance. However, as the other spouse, the community spouse remaining at home in the community, you do not have to spend your own monthly in-come on your ill spouse’s cost of care. As the community spouse, you can keep your own income.

Call today to meet with an elder law attorney in Pittsburgh, with offices in Monroeville. Contact Marks Elder Law today to start the planning process.

We will gladly review your planning for long term care to ensure it is up-to-date.