Spousal Refusal | Just Say No for Florida Medicaid

Just Say No, or spousal refusal, is applicable in situations where one spouse is living in a facility (either an assisted living facility or nursing home) and the other spouse resides in the community at home (“community spouse”).  

Medicaid imposes strict guidelines on income and asset limits to qualify.

And as a married couple, your assets will be weighed jointly—whether or not that other spouse is willing to foot the bill. But spousal refusal acts as a loophole, allowing the non-applicant spouse to refuse to pay for care and allowing the applicant spouse to claim benefits anyway.

Here's everything you need to know about Medicaid spousal refusal in Florida and how you can get help.

How Spousal Refusal Works for Florida Medicaid

The Just Say No / spousal refusal Medicaid planning option takes several steps:

1. transfer all of 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.  
   

Will Medicaid Sue for Spousal Refusal?

While no one likes the threat of a lawsuit, it should be comforting to know that Florida—to our knowledge—has never sued a community spouse who refused to make their assets available to the spouse who is receiving Medicaid benefits. 

Further, based on precedent, it is our belief that Florida will not file such a suit.  This 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 federal Medicaid 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, we believe 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 law attorney will prepare all the needed spousal refusal documents (the notice of spousal refusal and assignment of support rights).

Spousal Refusal | Just Say No Medicaid Drawbacks

There is an income-allowance drawback involved with just say no / spousal refusal Medicaid planning. Essentially, Medicaid says you “can't have your cake and eat it too” if utilizing Just Say No / Spousal Refusal. Generally, to avoid impoverishing the community spouse (who is not applying for Medicaid), the community spouse may be entitled to a portion, or all, of the Medicaid spouse's income. This income diversion is called the Minimum Monthly Maintenance Needs Allowance (MMMNA).

However, DCF takes the position that if the healthy community spouse is unwilling to “support” the spouse receiving Medicaid by deploying the “Spousal Refusal” strategy, then the community spouse will not be able to access the MMMNA income supplement from the Medicaid spouse that they would otherwise be entitled to receive.

If Spouse X refuses to share assets with Spouse Y, Spouse X will have to do without any additional income from Spouse Y.

Our attorneys will be able to lay out the pros and cons of spousal refusal compared to other Medicaid planning techniques.   

Divorce Alternative to Spousal Refusal for Medicaid in Florida

Since we cannot guarantee that a future Medicaid agency won't file suit against the spouse who refuses to support the one requiring Medicaid (although the risk is small) and some community spouses cannot do without the Medicaid applicant's income, there is another alternative: divorce.

Many of my clients have been married for years, and the idea of a divorce is abhorrent. However, divorce in a Medicaid context is only strategic, happening only at the state level.

Using an amicable divorce as a Medicaid planning strategy requires hiring two different attorneys (I work with several divorce lawyers who charge a low flat fee to get this done because there is no negotiation involved). If everything is agreed upon, a judge would then order the allocation of assets (e.g., most to the community spouse) and can even order agreed-upon alimony payments (from the Medicaid spouse to the community spouse). 

Medicaid must respect a judge's order.

Another positive aspect of an amicable divorce in a Florida Medicaid planning context is that it would allow the former spouses to live with each other if only one needs Medicaid (if the applicant spouse can live at home).

Find a Medicaid Planning Strategy That Works for You: Contact Elder Needs Law Today

Are you or a loved one struggling with Medicaid eligibility?

Spousal refusal is just one of the many options you have available to protect assets and get the benefits you deserve.

To discuss whether spousal refusal in the Medicaid context is right for you and to discuss other Medicaid planning options, schedule a consultation with our legal team today.