Can They Seize Our Family Home If My Spouse Goes To A Nursing Home While I Still Live There?

A concern for many families when a spouse requires nursing home care is the potential impact on the family home. While legal safeguards exist to protect the rights of the spouse remaining at home, it’s crucial to understand that this protection isn’t necessarily permanent. The home may be subject to certain claims, especially in the event of the death of the surviving spouse, depending on the financial assistance provided for nursing home care.

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Spousal Impoverishment Protection

Spousal Impoverishment Protection is legislation designed to prevent the spouse living at home, often called the community spouse, from facing financial hardship or losing their home because of the other spouse’s nursing home care needs. Under this protection, the community spouse can generally retain ownership of the home, irrespective of its value. Additionally, this law safeguards other assets, including most household items, personal effects, one vehicle and prepaid funeral expenses​​.

Medicaid’s Role And Implications

Medicaid plays a significant role in this context. As long as either the Medicaid beneficiary or their spouse is living, Medicaid cannot seize the home or force its sale. However, complexities arise after the death of the Medicaid recipient. In such cases, the state may seek reimbursement for care costs through Medicaid estate recovery programs (MERP). If the deceased leaves behind a surviving spouse, a minor child under 21 or a disabled or blind child, the state is precluded from pursuing estate recovery for long-term care costs. These MERP rules and procedures are not uniform and vary from state to state, highlighting the need for awareness of local regulations​​.

Considerations When One Spouse Remains At Home

In scenarios where only one spouse requires long-term care, the state typically permits the community spouse to continue residing in the home. The state may track the financial assistance provided for nursing home care and potentially place a lien on the house. This lien is meant to recover long-term care costs after the demise of both spouses​​.

Potential For Medicaid Recovery After The Surviving Spouse’s Death

An important aspect to consider is the potential for Medicaid to recover costs from the estate after the death of the surviving spouse. While there are exemptions for certain family members, state-specific rules can significantly influence the process. For example, some states, like Florida, may pursue estate recovery following the death of the surviving spouse, while others, like California and Texas, generally do not unless the surviving spouse also received Medicaid benefits​​.

Because of this, it's wise to consider consulting with financial advisers and estate planning professionals in advance, even while healthy. They can offer strategies and tools for asset protection, including setting up trusts.

Legal Consultation: A Crucial Step

Given the complexity and variability of these laws and rules, it is vital to seek advice from an experienced estate planning or elder law attorney. Such professionals can provide tailored guidance for your situation, helping you navigate legal intricacies and ensure the protection of your rights and assets.

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Jeannine has written about personal finance and investment for the past 13 years at a variety of publications including Zacks, The Nest, and eHow. She is not a licensed financial advisor and the content herein is for information purposes only and is not, and does not constitute or intend to constitute, investment advice or any investment service. While Jeannine believes that the information contained herein is reliable and derived from reliable sources, there is no representation, warranty or undertaking, stated or implied, as to the accuracy or completeness of the information.