A spousal refusal form is attached to the nursing home Medicaid application. Executing it and transferring all assets to the name of the non-nursing home spouse qualifies a married person for Medicaid.
New York is one of only three states in the country that allows spousal refusal to qualify a nursing home spouse for Medicaid. New York recognises a spousal refusal and does not apply the five year look-back period when you transfer assets to a spouse or to a disabled child.
This Medicaid planning technique is ideal for someone who is about to enter a nursing home and has a spouse who is well enough to stay at home. It is not recommended when the community spouse is also likely to soon enter a nursing home, because a person who has assets will be denied Medicaid.
It is imperative to not transfer assets from the community spouse to someone else before the Medicaid application gets approved.
It is important to get advice from an experienced Medicaid attorney before executing a spousal refusal. The spouse going into the nursing home might be required to sign an assignment of support in favor of the Department of Social Services, which would give Medicaid the option of suing the community spouse for support. There are some exemption to this requirement, such as the potential Medicaid recipient not being able to sign the form due to not having capacity, or imposing undue hardship on the family. Having an attorney is crucial if one wishes to obtain Medicaid without having to sign an assignment of support.