Finally, we have some good news in Massachusetts for an adult who is healthy and living at home with a spouse who is not so healthy and living in a nursing home. After significant lobbying with the Massachusetts Legislature, the National Academy of Elder Law Attorneys Massachusetts Chapter with other senior groups, was able to convince the legislature to include in the budget the right for an at-home, community spouse (CS) to keep $99,540.00 regardless of the amount of money the couple had before one was institutionalized
For some time in MA, in the event that a person entered a nursing home, the CS was entitled to keep one-half (½) of the assets, up to $99,540.00 (the amount for 2006 as adjusted every year on January 1). Therefore, if a couple had $100,000.00, the CS was entitled to keep $50,000.00 and the institutionalized spouse (IS) was allowed to keep $2,000.00. Thus $48,000.00 would have to be spent on the IS’s care.
Under the new provision, the CS can now keep the full $99,540.00. Therefore, if a couple had $100,000.00, the CS would be able to keep $99,540.00, and since the IS is entitled to $2,000.00, they would be able to keep their entire amount of liquid savings. Despite the fact that the Governor vetoed this increase, through significant lobbying, the Mass House and Senate have overridden the veto.
The $99,540.00 is in addition to other funds that may be kept such as burial accounts, prepaid funerals, or spend-downs on necessary expenses for either the CS or the IS. This is a major victory for the elders in Massachusetts.
In the event that any situation occurs at the time when the CS is spending down funds for the IS’s care, there should be an immediate review of the circumstances to protect as much CS funds as possible.
The override of the veto was to be effective for the fiscal year beginning July 1, 2006, but the Division of Medical Assistance, that administers the Medicaid program in MA, has yet to establish a procedure and adjust for the allowance of this amount. Therefore, case workers may have to perform a manual calculation to provide the CS with the larger sum.
It is important to note that the amount of $99,540.00 is for countable and accessible assets, and there are some assets that may not be allowable. In addition, there are assets such as the home which do not enter into the equation, so it is best to speak with a qualified estate planning attorney.
While this law is now effective in MA, it is hopeful that other states will take note of the benefit that may now be approved by a state legislature, and they will make the change that permits the at-home spouse to have a larger sum in the unfortunate event that their spouse is institutionalized.
By: Hyman G. Darling, Esquire
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