Spousal Refusal

The spousal refusal Medicaid planning option takes several steps:

• 1. Transfer all the married couple’s countable assets into the name of the community spouse only.
• 2. After the transfer of assets, and prior to filing a Florida Medicaid application, the community spouse signs a “notice of spousal refusal” indicating his or her refusal to be obligated to pay for the Medicaid applicant’s care.
• 3. The Medicaid applicant then must sign, either individually or through a power of attorney, an assignment of support rights to the government, which in theory, allows the government to take the position that it could sue the community spouse to reimburse it for the amount it paid for the applicant’s care and support.

While no one likes the threat of a lawsuit, it should be comforting to know that Florida, to my knowledge and through my research, has never sued a community spouse who refused to make his or her assets available to the spouse who is receiving Medicaid benefits. Further, it is a generally held belief, based on precedent, that Florida will not file such a suit. The belief is based on the fact that in 1995, Florida abolished the common law Doctrine of Necessaries (which gave one spouse an obligation to financially support the other). So, as the law currently stands, there is no requirement for spouses to support one another.

While this is not a guarantee, and of course, the government could try to advance other theories, it is generally believed among the legal community that the government is unlikely to file suit. Politically, it would not look good for the government to sue an elderly person for care support. Your elder care attorney would prepare all the needed spousal refusal documents (the notice of spousal refusal and
assignment of support rights).

Tune in next month as I will be discussing draw backs to spousal refusal and an alternative strategy.

The process of getting Medicaid can be extraordinarily complex. It is best to consult with an attorney who practices in Medicaid Law.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.