Medicaid Process & Asset Protection

Setting Aside Assets to Support a Spouse of a Nursing Home Patient

When a Medicaid applicant is married and the spouse is still living at home (called “community spouse” or CS) assets can be set aside for the support of the CS. The amount of the statutory limit is $109,560.00 for 2009. However, in many situations much larger amounts can be set aside. The decision must be based on many considerations including assets, income and the needs of the CS. The application is made through the Department of Aging and Disability Services (DADS).

All assets are considered, whether the property is separate or community. Fortunately, some assets are not counted against the asset limit. Also, DADS considers that income belongs to the person whose name is on the check. The snapshot of the assets is taken effective the first day of the month in which a continuous 30-day stay in a medical institution occurs. So if the wife goes into hospital on March 15, is moved into a nursing home on April 2, and remains through April 14, a continuous 30 day exists for application purposes. The assets amount is divided in half and the nursing home spouse’s assets must be spent down.


However, the value of the home, a car for the CS, and maybe even the IS, furniture within the home and certain other assets are not counted in the amount that must be spent down. The rules about which assets must be considered are under constant change. Within this mix is whether the non-countable assets will be subject to a claim by DADS after the nursing home spouse dies. How the title is held and other factors make Medicaid Estate Recovery a complicated subject.


If the person going into the nursing home is not married the income cap is $2,002.00 per month. Any and all sources of income are considered. This is possibly the easiest part of the planning process. Due to the frequency of applicants having more income than the cap, but not enough income to pay the actual costs this cap was contested.

The Court held that an applicant could create an income only trust through which all of the income would pass to the nursing home. Upon meeting this requirement Medicaid would cover the balance of the amount needed to pay for the nursing home care assuming the income was not enough. This was later put into the Social Security Statute by Congress.

This type of trust is commonly called by various names, including: Miller Trust, Qualifying Income Trust (QIT) and other names. The requirements on how the trust is to be created and how the trust will be funded can be strict, so hiring a competent attorney is advised.

As explained the income of the Incapacitated Spouse must normally be used to pay for the Nursing Home care of the IS. However, if the CS needs additional support income of the IS may be allocated to the CS. This is done before any assets are allocated back to the CS.

Need to find a good nursing home?

Call Charles Kennedy P.C. for a free information packet on how to determine which nursing homes provide the best care. The Texas Department of Human Services provides reviews of Texas nursing homes and can be found on the Medicare website. Here you will find nursing home comparisons that you can search for by county, city or zip code. Each individual nursing home will have the most recent results within its section.

Let an experienced Elder Care attorney, help you with all of your life planning legal needs. Mr. Kennedy serves clients in Dallas, Fort Worth, Arlington, Mansfield, Grand Prairie, and all surrounding areas in Tarrant and Dallas Counties.

*The Information provided in this website by Arlington elder care attorney Charles Kennedy is meant to be general in nature, not as advice for the exact circumstances you may face.