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Long Term Care Planning: Divorce Is Not Your First Option

A hotly contested issue in the Florida Legislature this month concerns spousal refusal. ‘Spousal refusal’ is both a federal and state law that enables a married person to obtain Medicaid assistance when one spouse refuses to make their assets available to the spouse who requires long-term care. The person applying for Medicaid must sign a form that assigns their right to support from their spouse to the state.

A bill was sponsored that sought to give the Department of Children & Families (DCF) the ability to deny Medicaid for anyone that did not cooperate in DCF obtaining a court order of medical support against the spouse. The proposed bill was more restrictive than federal law which is not permitted. Thanks to an active group of Florida elder law attorneys it appears that the bill is not going to pass.  DCF will be required to publish proposed rules and hold public hearings which will allow elder law attorneys and the public to comment and have an impact on whether a proposed rule is adopted (rather than DCF trying to influence lawmakers).

In Florida, a spouse is not legally responsible for the debts of the other spouse. Several years ago, the Florida Supreme Court made this ruling in a case where a hospital sued a patient’s wife for payment of the husband’s unpaid hospital bill. Our Supreme Court ruled that the wife could not be held responsible for her husband’s debts. DCF is trying to get around the law.

Sadly, DCF may be leading the Florida Legislature to put married couples in a position where they feel their only option is to get a legal divorce so that their assets cannot be viewed or deemed available to their ill spouse. With increasing life expectancies more people are concerned about how they will pay for their own daily living and long-term care once their spouse becomes ill. The amount of assets that the well spouse can keep is not realistic in light of the cost of living and the cost of medical care. In addition, some couples are in second or third marriages and specifically keep their wealth separate to pass onto their respective families (many have pre-nuptial agreements). The option of spousal refusal is necessary and should not be taken away. Illness and mortality, for many people, cause fear to rise to the surface. The last thing we need is our government to take away spousal refusal. What we need is respect for the institution of marriage and to help people finance the cost of long-term care.