Spousal Refusal

The theme of many of these postings and programs that Janice Chapin, Esq. of Central Jersey Legal Services and I have conducted for the Institute of Continuing Legal Education (“ICLE”) has been the lack of attention by Medicaid to federal law (i.e. federal pre-emption). A major area for this contention relates to the concept of spousal refusal. That is, if a community spouse refuses to contribute his or her funds to the nursing home costs of an applicant, under what circumstances should Medicaid still be granted? The federal law basically states that Medicaid will not be denied if a community spouse refuses to contribute if the State has the right to sue the spouse for the costs that should be contributed.

The State of New Jersey again does not follow the federal law and has a list of onerous requirements for spousal refusal to be given effect (i.e. Medicaid granted despite the refusal). There are forms to be filled out and questions to be answered. The major requirements for spousal refusal (and the granting of Medicaid in New Jersey) are (1) a lengthy separation of at least 20 years, (2) non-cooperation of the community spouse, (3) at least three attempts to communicate with the community spouse.

The State then evaluates whether Medicaid should be granted.

It is a rare case in which the State will honor spousal refusal. Therefore, if spousal refusal is not granted, and the spouse has in excess of the resource requirement (currently $109,560), Medicaid will be denied.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 78