Spousal Rights and Responsibilities

 

 

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SPOUSAL RIGHTS AND RESPONSIBILITIES

UNDER MEDICAID RULES

 

As compared to planning for an individual applicant, Medicaid planning becomes more complex when dealing with a married couple where one spouse is institutionalized and the other spouse intends to continue residing at home. Not only is there the concern with the institutionalized spouse's eligibility for Medicaid, but there is the added objective of making sure the community spouse retains or acquires sufficient income and resources to maintain an adequate standard of living.

In an attempt to address the public policy concerns of spousal impoverishment, federal law gives the spouse some protection from impoverishment, while at the same time expanding spousal responsibility for the medical assistance costs of the institutionalized spouse.

Medicaid planning for such married couples thus focuses both on the eligibility of the institutionalized spouse and maximizing the property rights of the community spouse to ensure that the community spouse keeps or acquires the largest amount of resources and income permitted by law.

 

TREATMENT OF RESOURCES: THE COMMUNITY SPOUSE RESOURCE ALLOWANCE

In the case of a married couple where one spouse is institutionalized, all property owned by the spouses, whether held individually or jointly, will be deemed an available resource for eligibility purposes, except that in addition to the standard resource exemptions discussed in another section of this outline, the community spouse will be entitled to retain or acquire assets equal to the Community Spouse Resource Allowance ("CSRA").

 

DEFINITION OF COMMUNITY SPOUSE RESOURCE ALLOWANCE.

The CSRA is equal to one-half of the couple's combined countable resources, valued once at the time the institutionalized spouse permanently enters the nursing facility. However, the CSRA cannot be more than a set amount, as adjusted annually for inflation ($109,560 effective as of January 1, 2009), and it cannot be less than a fixed amount, also adjusted annually for inflation ($21,912 effective as of January 1, 2009).

The CSRA can be further enlarged if necessary to generate additional income to meet the spouse's monthly maintenance needs allowance, discussed below.

 

RESOURCE ASSESSMENT.

The CSRA is calculated by taking a "snapshot" of the couple's assets, referred to as the resource assessment, on the date the spouse is permanently institutionalized. It is to the spouses' advantage to have the resource assessment made as soon as possible after the spouse permanently enters the nursing facility, when records are still readily available. The resource assessment will benefit the community spouse by clearly fixing the amount that he or she will be entitled to exclude from the institutionalized spouse's countable resources when the Medicaid application is ultimately made.

 

TREATMENT OF INCOME: THE MONTHLY MAINTENANCE NEEDS ALLOWANCE

Protecting the community spouse is concerned not only with maximizing the assets that can be acquired or retained, but also with maximizing the spouse's monthly income.

When one spouse is institutionalized, the community spouse can retain from his or her own income, or acquire from the institutionalized spouse's income or from their joint income, a Monthly Maintenance Needs Allowance ("MMNA"), which is equal to the combination of the following:

 

INCOME ALLOWANCE, which is the monthly income that will increase the community spouse's income to 150% of the federal poverty line for a couple if the spouse's own income is less than that amount, as adjusted annually (effective July 1, 2009, the Income Allowance is $1,822).

 

EXCESS SHELTER ALLOWANCE, which will be triggered if the community spouse's housing and utility bills are sufficiently high. This allowance is based on the community spouse's total housing expenses along with a utility allowance.  If such expenses exceed 30 percent of the above-defined Income Allowance (or $547, based on the July 1, 2009 Income Allowance of $1,822), the excess can be retained by the community spouse from the spouse's own income or the spouse can claim it from the institutionalized spouse's income or from their joint income.

 

INCOME CAP. Notwithstanding the above rules, the total amount that the community spouse can retain or acquire from the institutionalized spouse's income, or from their joint income, cannot exceed a set amount, adjusted annually for inflation (as of January 1, 2009, the cap is $2,739).  A higher limit can be set pursuant to a fair hearing or court order.

 

 

Options When Community Spouse’s Income Does Not

Reach the Monthly Maintenance Needs Allowance

 

In many cases the community spouse’s income will not be sufficient to meet the MMNA. There have been two general solutions to this problem: (1) the income-first approach and (2) the resource-first approach.

Federal law now mandates that the states use an "income-first" rule in computing the CSRA in cases where the community spouse’s monthly income does not reach the MMNA.  All of the institutionalized spouse's income that can be made available to a community spouse to meet his or her MMNA must now be treated as made available before the community spouse can be allocated any amount of resources adequate to make up the difference between the MMNA and all income available to the community spouse.

 

 

EFFECT OF INCOME-FIRST RULE

To obtain the MMNA the community spouse must start by applying all of his or her own income, such as Social Security, pensions, and the required minimum distribution from IRAs.

In addition, the community spouse will be deemed to receive an amount of income from the standard CSRA. This amount is currently calculated on a monthly basis by multiplying the CSRA by 1.5% and dividing the result by 12.

The community spouse can next take whatever amount of the institutionalized spouse's income that is necessary to reach the MMNA.

If the community spouse still needs additional income to reach the MMNA, he or she will finally be able to reach the institutionalized spouse's assets. However, rather than being free to hold or invest such assets in any way the community spouse chooses, as was the case under the old rules, DPW will now require the community spouse to use such additional assets to purchase an actuarially sound commercial annuity for a term certain (Lifetime Guaranteed Period Annuity) equal to the community spouse's life expectancy. In addition, DPW must be named as contingent beneficiary if the community spouse dies during the guaranteed period certain up to the amount that Medicaid will have paid for the institutionalized spouse’s care.

 

 

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DISCLAIMER

Martin J. Hagan is licensed to practice law in the Commonwealth of Pennsylvania. This website is intended solely for informational use and is not intended to solicit clients. Likewise, any information contained in or obtained from this web site is for informational purposes only and is not intended to be used as legal advice.

IRS CIRCULAR 230 DISCLAIMER:   Pursuant to Treasury guidelines, any tax advice contained in this website (or any link from it) does not constitute a formal opinion. Accordingly, any tax advice contained in this website (or any link from it) is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding penalties that may be asserted by the Internal Revenue Service. You should seek advice based on your particular circumstances from an independent tax advisor.

Send mail to mhagan@haganlaw.net  with questions or comments about this web site.
Copyright © 2010  Martin J. Hagan, One Gateway Center - 8 South; Pittsburgh, PA 15222-1435
Last Updated: 03/05/10