Divorcing a Spouse in a New York Nursing Home
Our Long Island divorce lawyer offers guidance when one spouse becomes incapacitated
If you’re thinking about divorcing a spouse who is confined to a nursing home, there might be several things going through your mind. It’s possible that you are worried about having to spend down the assets you have accumulated over a lifetime so that Medicaid will pay for your spouse’s care. You could be looking to start a new chapter in your life while being wary of going through a divorce when your husband or wife is in a facility. Bryan L. Salamone & Associates, P.C., provides comprehensive counsel on the legal, financial and emotional aspects of ending a marriage during such an already trying time.
Attempts to protect assets through divorce
Over the years, there have been examples of “Medicaid divorce.” This is when a spouse makes the heartbreaking decision to divorce their nursing home-bound husband or wife in order to avoid financial collapse and to maintain their partner’s eligibility for government benefits. Fortunately, New York has a spousal refusal law that should allow most people who are married to residents of healthcare facilities to avoid financial collapse. With a spousal refusal, a husband or wife can shield certain income and assets from being used to pay for their partner’s nursing home care.
Still, nursing home care and even in-home health assistance can be extremely expensive. If you’re considering divorcing a spouse who has substantial ongoing healthcare expenses, you should speak to a knowledgeable Long Island asset division lawyer regarding how financial matters might be resolved when your marriage ends.
When a spouse suffering from dementia is in a nursing home
Dementia is a general term describing mental deterioration that occurs as one ages. Even a person diagnosed with Alzheimer’s Disease or another condition associated with dementia might have the mental capacity to make decisions on their own. If your nursing home-bound husband or wife is no longer competent, you can get a divorce, but the process likely will be longer and more complicated. For one thing, someone must be appointed to act on your spouse’s behalf. As in any other divorce, an order dividing the proceeds of the marital estate must be entered, and it likely will reflect the fact that your spouse will require lifelong medical care since he or she is no longer capable of earning income.
Is legal separation a possibility when a husband or wife is in a care facility?
Spouses who execute a separation agreement remain legally married under New York law. This means that despite the separation, a husband or wife remains as a legally responsible relative for the purposes of determining eligibility for Medicaid benefits. If you’re interested in getting a legal separation, you should understand that an agreement must be entered into voluntarily by the parties, so your spouse must accept the terms and be legally competent to do so.
Timing a divorce when a spouse is entering a nursing home
There’s no easy time to divorce a husband or wife who is dealing with a serious medical condition. If your spouse is mentally capable of negotiating divorce terms, it might be beneficial to start the legal process as soon as possible in case things take a turn for the worse. In many cases, rules against spousal impoverishment will protect a husband or wife from going through a Medicaid “spend down,” even if they remain wed. Moreover, the Medicaid look-back period means that asset transfers made in the previous few years do not aid eligibility. If you and your spouse jointly own substantial assets, it might be best to speak with an attorney about developing a strategy that fits your situation and needs.
How marital agreements affect a nursing home divorce
Marital agreements are enforceable if they meet the requirements set forth by state law. However, if a medical condition is so serious that a husband or wife must reside in a healthcare facility, this could constitute a change of circumstances that renders enforcement of a prenuptial agreement unconscionable. You should speak with an experienced attorney about the likelihood that your prenup or postnup would be applied in your situation.
Contact an insightful Long Island divorce attorney
As the Long Island divorce leader, Bryan L. Salamone & Associates, P.C., has extensive experience successfully guiding clients through the New York marriage dissolution process during difficult situations. To schedule a consultation regarding divorce when your spouse is in a nursing home, please call 631-388-6009 or contact us online.