Ask the Expert: Divorcing a Loving Husband to Afford Long-Term Care

Q. I have a question about Medicaid eligibility and need elder law and/or divorce advice in order to protect our modest assets. My husband and I reside in Virginia. I am in my late 60s and work full time. My husband is 80 and has Parkinson’s disease and early signs of dementia. His only income is Social Security and a military pension. While our income is OK, it is not enough to support myself AND my husband should he need to go into a nursing facility, which is getting to be more and more likely. I understand that in Virginia, my 401k retirement account (which is sizeable) is counted in determining Medicaid eligibility. I’m worried that my only option is to divorce my husband so we can qualify for Medicaid assistance and I can sustain the modest level of living we have. Are there any other options? He could not get long term care insurance due to his Parkinson’s.

Based on a question asked on Avvo by a resident of Manassas, VA

A.  You do NOT need to divorce your husband, and divorcing him might not even accomplish your goal.

For many people, the idea of divorcing a spouse of many years is unconscionable.  As a loving spouse, you may feel as if you are deserting a sick husband, and you will have to deal with the stress and public nature of the divorce proceedings.

In addition, in a divorce, there is also always the possibility that the judge will not order a division of property in accordance with your desires or even in accordance with a written agreement.  A divorce may be worthwhile only if a judge grants all of the assets to you, the healthy spouse.  Yet a judge may be unwilling to do so if he feels that your husband, who is sick and has high medical costs, deserves more.  The judge may also view your agreement as an act intended for Medicaid eligibility only and may be unwilling to use court authority to help you engage in Medicaid Asset Protection.

There is also the issue of incompetence.  Getting a divorce is much more complex when a guardian has to be appointed by the court for the spouse who is no longer competent.  Legally, it would be the guardian’s duty to act in the best interest of his client only and he or she might not be as worried about the best interests of the healthy spouse. If this is the case, it could be difficult for the couple to obtain their desired financial outcome.

Divorce can also have unwanted practical consequences for pensions, Social Security benefits, taxes, insurance, estate law, medical decision-making, even hospital and nursing home visitation rights, among other things.
Luckily, there are dozens of legal and ethical strategies that experienced Elder Law attorneys such as myself can help you employ to protect 100% of your total marital assets and 100% of your income, as the healthy spouse, and get your husband on Medicaid if and when he needs nursing home care. Through the process of Life Care Planning and Medicaid Asset Protection (which our firm calls “Level 4 Planning”), we can help you protect ALL of your assets and quickly obtain Medicaid to pay for your husband’s nursing home care.  We might even be able to get some of your husband’s monthly income allocated to you.  Level 4 Planning is focused not on preparation of specific documents, but rather on protecting your assets and obtaining Medicaid to help pay for your husband’s care.  You mention that your husband has a military pension . . . assuming he served at least one day active duty during wartime, we might also be able to get your husband a benefit called Veteran’s Aid and Attendance, which is a special type of Pension available for wartime veterans who served on active duty for at least 90 days.
The assets that we protect can be used to maintain your quality of life and also, if it would benefit your husband, to enhance his quality of life in the nursing home by allowing you to purchase goods and services not covered by Medicaid: goods such as dentures, hearing aids, vision aids, and personal items; services such as enhanced medical care or private sitters to provide him with an enhanced level of care.
Virginia also has a Medicaid home care benefit which could help you care for your husband at home if the need arises. The Program for All Inclusive Care for the Elderly (PACE) is designed to allow Medicaid eligible individuals aged 55 or older, who meet the nursing facility level of care, to access comprehensive coordinated care in their homes and communities.  To be eligible, Participants must be age 55 or older, be certified for nursing facility care, be residing in the approved service area, and be able to live safely in the community. Learn more about the PACE program.
The bottom line is that we can protect ALL of your family’s assets without forcing you to get a divorce.  The Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. helps couples in similar situations obtain Medicaid assistance and Veterans Aid and Attendance benefits without having to divorce or deplete their life savings.  With proper planning, you can retain all of the assets and most or all of the income while Medicaid takes care of the nursing home.  In addition, we aim to ensure that you, the spouse who is remaining at home, is able to maintain your dignity and standard of living.  Read more about the services we offer to help couples in similar situations, then call us today at 703-691-1888 for a consultation.

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.