When planning for Medicaid, it is important not to overlook the possible death of the community
spouse (the spouse not in the nursing home) before the institutionalized spouse. The
availability of these funds for the institutionalized spouse could result in being ineligible for
Medicaid.
The estate plan of the community spouse needs to be reviewed to ensure that the estate will not
pass to the institutionalized spouse either under a Will, through joint ownership, or by
beneficiary designation. Even a Will that bypasses the nursing home spouse will not solve this
problem. Under the Michigan probate code, the surviving spouse may elect against the Will.
Medicaid agencies are becoming increasingly aggressive in forcing a nursing home spouse in
these situations to elect against such Wills in order to gain access to their statutory spousal
share. If the spouse fails to elect his or her statutory share, it is considered a transfer of assets
(a divestment) and the penalty period begins at the latest date the spouse could elect,
It is important not only to look at the ownership and beneficiaries of all the assets of the
community spouse, but what estate plan documents will provide the best protection for the
institutionalized spouse.
Burgess and Sweeney Law, P.C. continue to advise clients on estate planning, elder law,
Medicaid planning, probate and trust administration, guardianships and conservatorships,
business law, and real estate. As a result of the constantly changing laws in these areas, the
information provided may change. We would be pleased to discuss this, or any other issues, in
more detail.
