“Just Say No” – Can a Spouse Refuse to Support Their Spouse to Avoid Paying Long Term Care Costs?
By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a NJ Medicaid Attorney and Law Firm
New Jersey Medicaid laws are tough, especially as relates to the financial responsibility of spouses to financially support each other should one spouse get sick. There are published cases and a statute commonly cited that mandates that a spouse must pay for the necessities of the other (doctrine of necessities). So does that mean a spouse has to pay the $12,000 a month nursing home bill of their failing spouse? Generally speaking, the answer is yes but if you read my website on Medicaid strategies for long term care, you’ll see that there are many available strategies to minimize the devastating outcome. Another strategy that is seldom used (I’ve used it successfully several times) is called “Just Say No”, or “Spousal Refusal to Support”. Under federal law 42 USC §1996R-5(3)3 if the community spouse simply refuses to pay for the nursing home care of the ill spouse, New Jersey cannot consider the assets of the community spouse in determining the Medicaid eligibility of the nursing home spouse. While, what I just told seems fairly straightforward and simple, it’s not. There are a number of additional conditions and substantive/procedural legal requirements that must be followed but the bottom line is the strategy is legal and effective. New Jersey and other states hate it but when challenged (and I’ve done it) by way of threatened appeal and sanctions under federal law (specifically a 1983 Civil Rights lawsuit), New Jersey and other states will often consider the law and grant approval. New Jersey will then have to pursue a civil collection action against the community spouse for the support of the nursing home spouse but the nursing home spouse is immediately eligible for Medicaid and will be subject to the Medicaid reimbursement rate rather than the private pay rate. So even if the state pursues collection (often doubtful, especially for out of state spouses) and is successful (which is no certainty) the amount due the state will still be lower had the family not gone through the process.
Contact Fredrick P. Niemann, Esq. today with any questions you may have concerning NJ Medicaid. He can be reached toll-free at (855) 376-5291 or by email at fniemann@hnlawfirm.com. We look forward to hearing from you.