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When a husband or wife needs Medicaid in a nursing home, the Department of Children and Families allocates to the well spouse a portion of the nursing home spouse’s income. The income allowance brings the “well spouse’s” total income to a range between $1991 and $2981. A higher figure is applicable when the well spouse has high “shelter expenses.” Shelter expenses include mortgage or rent, taxes, utilities and home owners’ insurance.

Sometimes, even with a diversion of a portion of the nursing home spouse’s income, the well spouse does not have sufficient income to meet budgetary demands. If the well spouse’s assets are not sufficient to support the well spouse’s anticipated lifetime needs, and the nursing home spouse has a substantial amount of income being paid to the nursing home, it is possible to seek a court order to increase the amount of the sick spouse’s income diverted to the well spouse.

This court order can be obtained either in a guardianship proceeding or in a proceeding for support unconnected with dissolution of marriage. A greater diversion of income to the well spouse will not impact the quality of care that the sick spouse receives. Whenever legal proceedings are necessary there is some risk that the Judge will not agree with request. There is also cost associated with the proceeding. However if the proposed increase in income to the well spouse exceeds several hundred dollars and the spouse in the nursing home is expected to live at least six months, the risk and cost is usually justified.

I recently pursued such a court order when I represented a wife, whose husband had a substantial civil service pension and who had little income of her own, had a house in Olde Naples, which costs a considerable amount to maintain. We were able to increase her share of income by over $1000 per month.

Considerations about income diversion is one of the many issues that need to be considered when applying for Medicaid.