If the community spouse dies prior to the nursing home spouse, under state intestate laws, the nursing home spouse will inherit the home. If the home is solely in the name of the community spouse, then the home is not considered a personal residence by the nursing home spouse and the home is no longer exempt and will count as an asset. This will disqualify the nursing home spouse for Medicaid.
An attempt could be made where the home is solely in the name of the community spouse to create a will that disinherits the nursing home spouse. Unfortunately, states do not allow spouses to disinherit each other and require that regardless of any prior arrangements, a surviving spouse has a legal right to an “elective share” of the assets. In some states, this could be a third of the amount or possibly one half of the amount or some other number.
There is also a problem in those states where the community spouse transfers the home to someone else and that counts as a disqualifying gift for the nursing home spouse. Thus any gifting arrangements prior to death would disqualify the Medicaid beneficiary.
An immediate and sudden death of the community spouse cannot be planned for. An anticipated death, due to declining health, can be planned for. Strategies for dealing with this potential problem need to be addressed by a qualified elder law attorney.
Avoiding Recovery in Probate Only States
In those 13 states that only apply recovery through the probate process, any planning strategies that bypass probate will prevent recovery. This might include the use of a living trust or putting other people on the title in joint ownership with rights of survivorship.
It should be noted that if the state changes its definition of “estate” to include trusts, life estates or other arrangements, there has been typically no grandfathering allowing application of the previous rules.