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Medicaid Divorce: Maybe . . . Maybe Not.

Posted by Andrew Byers | May 08, 2018 | 0 Comments

Harry and Wanda got married late in life. This was their second marriage, and both had children from the prior marriages. The couple wanted their children to inherit from their respective parents, so Harry and Wanda signed a prenuptial agreement to keep their property clearly separated.

Unfortunately, several years after the marriage, Harry was then diagnosed with Alzheimer's. Medical bills piled up, his condition worsened, and soon Wanda was no longer able to care for him at home. But the $8,000 monthly cost of nursing-home care was formidable.

The Medicaid program is designed to help pay for that staggering cost. However, before a couple can be eligible, the rules require that the assets of both spouses are counted to pay for the care of one, even if only one spouse needs the care. Prenuptial agreements do not matter. The Medicaid rules count the assets of both spouses together. Wanda would be permitted to keep some of her property for her own use – but this would not be enough for her to maintain her standard of living, pay for her retirement, and still leave enough for Wanda's children to inherit.

Wanda heard that divorce might solve this dilemma. The couple's assets would get separated in the divorce proceedings and, after that, only the property designated as Harry's would be applied to the cost of his care. He would spend that down, Medicaid would then step in, and Wanda's share would remain her own.

But Wanda didn't like the idea of a divorce that would be only “on paper,” because she had no intention of deserting Harry in his time of need. Harry's children weren't happy, either. And if the divorce was going to work as intended, the couple should probably consult not just one but three professionals – an elder law attorney, a financial planner, and a divorce lawyer.  However, this plan would involve expense, possible family unrest, and uncertainty as to whether a court would approve the plan.  The divorce strategy comes with significant downsides.

While planning in advance is best, before the need for Medicaid arrives, if that is not possible, an experienced elder law attorney can still help with other, less-fraught ways than divorce.  If you are concerned about the costs of your spouse's long-term care, we can help without you having to get divorced.  Please don't hesitate to call our office for assistance.

About the Author

Andrew Byers

Andrew Byers' elder law practice focuses on the legal needs of older clients and their families, and works with a variety of legal tools and techniques to meet the goals and objectives of the older client. Under this holistic approach, I handle estate and longevity planning issues and counsel cli...

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