Spousal Impoverishment Law / Division of Assets

Medicaid is health care for the financially needy who are also blind, aged or disabled. Created by the Social Security Act, it is funded by state and federal governments. You must apply for Medicaid through the KanCare Clearinghouse. Unlike Medicare, Medicaid does not require that you earn work credits through Social Security to qualify.

Yes, but only if your spouse can establish a medical need for nursing home placement and meet the federal and state eligibility guidelines.

You must meet the following requirements:

• Have a medical need to be in a nursing home;
• Meet Medicaid financial eligibility requirements; and
• Not be disqualified for unauthorized property transfers.

You will need to contact the KanCare Clearinghouse at 800-792-4884 to obtain the proper forms. You will be asked to complete a Medicaid application. You will be asked to list all of the assets owned by you and your spouse. The KanCare Clearinghouse will determine the amount of resources that can be protected for the community spouse. If resources need to be transferred to the at-home spouse, KanCare will notify you and tell you which forms will need completed and signed.

Based on the information on the assessment form, you will divide resources. Some assets may need to be transferred from the institutionalized spouse and into sole ownership of the at-home spouse. You will be notified if any resources need to be transferred. You may also contact an attorney to help you with the necessary legal documents involved with the transfers.

During the transfer process, do not add other persons' names to any assets without checking with the KanCare Clearinghouse first, as it may result in a delay or cancellation of Medicaid coverage for nursing home expenses. Medicaid benefits can be paid for 90 days while you make the actual property transfers. In some instances, extensions may be granted if you have been actively working on transferring ownership and have not completed the process.

Some items do not count in the Medicaid determination. These are called exempt resources, and you can keep them. They include:

• The home and its contents;
• One car (per family);
• One burial plot, casket, etc. (per person);
• A funeral plan within certain limits;
• The share of property allowed to the at-home spouse by the Spousal Impoverishment Law;
• Personal possessions, such as wedding rings and clothes; and
• In some situations, property used in an on-going business.

You can keep the greater of: the first $27,480 of total non-exempt resources, or one-half of the total non-exempt resources owned at the time the spouse entered nursing home care. The maximum share you can keep is $137,400. These amounts are subject to change annually, so contact the KanCare Clearinghouse to get the latest figure. The remaining amount of combined resources is considered available to the institutionalized spouse.

The amount of resources that can be protected is determined by the amount of total non-exempt resources owned by the couple when the spouse first entered an institution. This figure is determined from information you report and verify on the Resource Assessment form. It is also called the Community Spouse Resource Allowance.

No. As long as your total non-exempt resources are $27,480 or less, any or all of this property may be transferred to the at-home spouse.

You will not be required to contribute any of your own income toward the cost of your spouse's care. However, you may be able to keep a portion of the institutionalized spouse's income for your use. You can keep at least $2,177.50 per month of the total income of both spouses. Plus, if there are excess shelter expenses (rent, mortgage, taxes or insurance) you may be entitled to an allowance up to $3,435 per month. Also, a special allowance is given monthly for any dependent family members living with the at-home spouse.

Once approved for Medicaid, the long-term care spouse may be responsible for a portion of the cost of his or her medical care. The cost of the care is determined by the monthly income of the institutionalized spouse. A $62 personal needs allowance is deducted from the gross monthly income as well as the amount of any incurred medical expenses not paid by Medicaid or another third party, such as the cost of health insurance premiums. If the at-home spouse is eligible for an income allowance as described above, that amount is also deducted. The remainder, if any, is paid to the nursing facility toward the cost of the care. This amount is called the patient liability or client obligation.

No transfers should be made until all of the paperwork has been completed and the amount of income and resources that the at-home spouse can keep is determined. In some cases, transfers made prior to coming to the KanCare Clearinghouse can jeopardize Medicaid eligibility. Always seek prior approval from the KanCare Clearinghouse before transferring any resources or income.

The State Medicaid agency by law has a first-class claim against the estate of the Medicaid recipient or the surviving spouse for benefits paid to the recipient. The Medicaid recipient must have been 55 years of age or older or in a nursing facility while on Medicaid. This claim arises only after the death of the recipient and the surviving spouse. No recovery would occur if there is a surviving minor or disabled child.

No. It is strictly an option for the couple to seek a division of resources, income, or both. If you do not, certain resources and income will be considered available to the spouse in the nursing home, and he/she may not gain eligibility as quickly.

Benefits will not be paid until the spouse applying for assistance is able to meet the Medicaid eligibility requirements. This means the spouse needing care will have to deplete his or her share of the divided resources to the Medicaid eligibility level (presently $2,000).

If the additional resources are acquired before the long-term care spouse is actually receiving Medicaid coverage, the resources are usually considered a part of his/her share of assets and must be depleted before eligibility begins. Because the Community Spouse Resource Allowance is determined as of the month of the entrance into long-term care, resources that were not owned by either spouse in that month cannot be considered for division purposes.

Resources acquired by a Medicaid-recipient institutionalized spouse will be countable toward the $2,000 limit. Receipt of resources in excess of this amount could result in a loss of Medicaid coverage. Receipt of additional resources by the at-home spouse can usually be held without affecting the other spouse's eligibility for Medicaid.

Adjustments for inflation will be made based on changes in the Consumer Price Index. The KanCare Clearinghouse will automatically figure any increase and adjust your case accordingly. The amount of resources the at-home spouse can keep will be fixed at the time of the application and will not be adjusted.

No. The law applies only to Medicaid eligibility for long-term care (nursing home), Home and Community-Based Services (HCBS) and Program of All-Inclusive Care for the Elderly (PACE) covered by Medicaid.

Whatever property was transferred to a spouse belongs to that spouse's estate and will pass to heirs unless the at-home spouse survives the recipient. The recipient spouse, as one of the heirs, should receive at least half of the estate based on state inheritance laws. If this does not occur there may be transfer of asset issues which could affect the recipient's eligibility. If the at-home spouse survives the recipient, the estate of the at-home spouse will be subject to a claim by the State Medicaid Agency under Estate Recovery upon his or her death.

No. Your heirs can only inherit what you actually own on the day you die. Also remember that the estate of the at-home spouse will be subject to estate recovery as noted above.

No. The law applies only to Medicaid eligibility.

• Contact the KanCare Clearinghouse at 800-792-4884
• Kansas Department of Health and Environment – Division of Health Care Policy (KDHE – DHCF)
• Local Senior Citizen Law Project
• Your family attorney
• The Kansas Bar Association Lawyer Referral Service
• Your local Kansas Area Agency on Aging