Do Both Spouses' Assets Count for Medicaid Purposes if One Goes to a Nursing Home?

Full question:

a irrevocable A-B Trust was set up in 1989 it has a medicaid trust clause that protected the assets of that trust if nursing home is needed. wife who was deeded 2 income properties in 1989, with affidevit stating that grantor , husband was retaining no reserved interest in property and it was filed.property not in trust but owned solely and willed to children with herand only her life interest till death.wife died 2008 leaving said property to her 3 children by will drawn before she died. upon her death and as sole beneficiaries to her solely owned properties since 1989, children sold property when her estate was settled in 2009. husband now entered nursing home sept. 2010. medicaid is saying that these properties are part of the madiaid consideration of assets. this cannot be? thank you

• Category: Wills and Estates
• Date: 04/07/2025
• State: New York

Answer:

Both spouse’s assets are counted for purposes of qualifying one spouse for Medicaid, whether jointly held or not, and no matter whether one spouse has what can be characterized as truly separate. The couple is treated as a single financial unit when either of them applies.

The look-back period for asset transfers was extended from 3 years to 5 years and the start of the penalty period or ineligibility period for transferred assets was changed from the date of the transfer of assets to the date when the elderly person applies for Medicaid and is otherwise qualified for Medicaid, generally at the time he or she enters a nursing home. Simply put, one of the key requirements for Medicaid eligibility is that the elderly person lacks assets, meaning he or she can't afford to pay for nursing home care. However, Medicaid will look back 5 years to see if the elderly person transferred any assets for less than fair market value, and if so, will deny Medicaid benefits for a period of time (the ineligibility period) based on the amount of assets transferred. This lookback period is the same for all states because this is a federal law.

If a transfer is created with knowledge of an impending claim, it is possible the transfer could be challenged as a fraudulent conveyance. For example, creating a trust right before filing bankruptcy may throw up red flags for examination.

The elements of a fraudulent conveyance transfer are defined as follows by the Uniform Fraudulent Transfer Act:

(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
(i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(ii) intended to incur, or believed or reasonably should have believed that he [or she] would incur, debts beyond his [or her] ability to pay as they became due.
Before you qualify for the government nursing home assistance program, there is a 60 month look back to see if and when you transferred your assets for less than fair cash value or you transferred your assets into a trust system or any system of transferring your wealth for the purpose of becoming eligible for the nursing home program depriving the state of all your available resources for your long-term health care.

Transferring, giving away or selling resources for less than fair market value is called a "disposal of resources". Under the Deficit Reduction act of 2005, the look back period (five years rather than three) will apply to transfers made on or after February 8, 2006. For every $4300 disposed of you will be disqualified for one month of Medical Assistance coverage of your nursing home care.

The penalty period for transfers made on or after February 8, 2006, starts on the later of: the first day of the month after which assets are transferred for less than fair market value, or the date on which you are eligible for Medical Assistance—Long Term Care. The change from 3 years to 5 will be phased in so that, for example, if you apply for Medical Assistance in March, 2009, the look-back period will be three years and one month. As of February, 2011, the full look-back period of five years will be fully in effect. If you give away property or money on more than one occasion, the second penalty does not begin to run until the end of the first one. The length of the disqualification depends on the value of the resources transferred.