Spousal Refusal

When one spouse needs Long-Term Care Medicaid, the state counts both spouses’ assets. Sometimes the spouse at home will not, or cannot, make their assets available, perhaps because the couple is estranged, or because the healthy spouse wants to preserve money for their own future. Federal law includes a provision that, in some situations, lets the spouse who needs care qualify anyway if the healthy spouse refuses to contribute. This is often called spousal refusal. It is powerful where it is accepted, but it is used very differently from state to state and carries real risks.

Figures change periodically. Double-check current amounts before relying on them.

The legal basis

Under the federal spousal impoverishment law (section 1924 of the Social Security Act), the spouse who needs care (the “institutionalized spouse”) is not ineligible because of the community spouse’s assets when:

• the institutionalized spouse has assigned to the state any rights to support from the community spouse;
• the institutionalized spouse cannot execute an assignment because of physical or mental impairment, but the state has the right to bring a support proceeding against the community spouse without one; or
• the state determines that denial would work an undue hardship.

In plain terms: if the applicant gives the state the right to pursue the healthy spouse for support, the applicant can be approved, and the state may then decide whether to seek contribution from the healthy spouse.

How it works in practice

1. The healthy spouse signs a refusal. A written statement that they refuse to make their income or assets available for the applicant’s care.
2. The applicant assigns support rights to the state, usually on a state form, or the state relies on its own right to pursue support.
3. The applicant is evaluated on their own assets and income. If those meet the limits, the applicant can be approved.
4. The state may pursue the healthy spouse. The state can ask the healthy spouse to contribute, negotiate, or go to court to seek support. In some states this is common; in others it is rare.

Where it is used

Spousal refusal is used most often in a small number of states, with New York the best known, where it has long been part of Medicaid planning. Some states accept refusals but actively pursue the healthy spouse for support. Others accept assignments only in narrow hardship situations, such as when the spouses are estranged and the healthy spouse cannot be found or will not cooperate. Some states do not accept it as a planning tool at all.

Because practice varies so much, spousal refusal should never be attempted without knowing how the specific state handles it. Each state guide notes what is known.

When it may make sense

• Estrangement. The spouses have lived apart for years and the healthy spouse truly will not contribute.
• Second marriages. Each spouse has children from a prior marriage, and the healthy spouse wants to protect their own assets for their own future and family.
• Large assets in the healthy spouse’s name in a state that accepts refusals and seldom pursues support.
• Abuse or safety concerns, where requiring cooperation would be harmful.

Risks and downsides

• The state can sue. The healthy spouse may be taken to court for support, and a court may order a contribution, possibly with legal costs.
• Negotiated contributions. Some states routinely seek a settlement. The healthy spouse may end up paying part of the cost anyway.
• Income allowance issues. A refusing spouse may lose the income allowance (MMMNA) from the applicant’s income, depending on the state.
• Family conflict. The process can be emotionally difficult.
• Changing rules. State practice can change, and a strategy that worked for others may not work now.

A worked example

Robert and Ellen married in their 70s. Each has adult children from earlier marriages. Robert, 84, now has advanced dementia and needs nursing home care. Ellen, 78, has $400,000 in her own savings, which she intends to leave to her children. Robert has $1,500 in his own name. They live in a state that accepts spousal refusal.

• Ellen signs a refusal to make her assets available for Robert’s care.
• Robert’s representative assigns his support rights to the state.
• Robert, with $1,500 in his name, meets the asset limit and is approved.
• The state later writes to Ellen asking her to contribute. With legal advice, Ellen negotiates. The outcome depends on the state’s practice and Ellen’s means.

If the same couple lived in a state that does not accept refusal as a planning tool, Ellen’s assets would be counted at the snapshot, and Robert would have to spend down everything above Ellen’s CSRA and his own limit.

Alternatives to consider

Before relying on spousal refusal, consider:

• The CSRA. The healthy spouse may already be able to keep a substantial amount. See The CSRA.
• Raising the CSRA at a fair hearing if the healthy spouse’s income is below the MMMNA. See Raising the spousal allowances.
• A Medicaid-compliant annuity that turns excess assets into income for the healthy spouse.
• Spending on the healthy spouse, such as home repairs or a car.
• Exempt transfers between spouses, which are not penalized.

Common questions

Is spousal refusal legal? It is based on federal law, but whether and how it is accepted depends on the state.

Does the healthy spouse have to divorce? No. Spousal refusal is an alternative to divorce.

Can the state take the healthy spouse’s home? A support action seeks money, not a particular asset. The healthy spouse’s home is generally protected while they live there, but a court could consider all their resources in deciding support.

Does refusal affect estate recovery? Estate recovery is a separate issue. Recovery against the applicant’s estate is delayed while a surviving spouse is alive.

What if the healthy spouse cannot be found? That is one of the situations where states are more likely to accept an assignment or a hardship finding.

Getting advice

Spousal refusal is one of the more technical and state-specific areas of Medicaid planning. A Certified Medicaid Planner (CMP), together with a local elder law attorney, can explain whether it is accepted in your state, how often the state pursues support and whether another strategy would give a better result.

Key terms

Step by step, if your state accepts it

1. Learn the state’s practice. Ask how often the state pursues refusing spouses, whether it seeks settlements, and how it treats the spouse’s income allowance.
2. Gather both spouses’ records. Even with a refusal, the state usually wants information about the healthy spouse’s income and assets, and refusing to provide it can itself cause problems.
3. Prepare the refusal statement. Many states have a form. It should be signed and dated by the healthy spouse.
4. Prepare the assignment of support rights. The applicant, or an agent under a power of attorney, signs it. If the applicant cannot sign and has no agent, the state may rely on its own right to pursue support.
5. File the application showing the applicant’s own assets and income.
6. Respond to any support demand from the state with legal advice.

How the state may calculate a contribution

When a state pursues a refusing spouse, it often looks at the healthy spouse’s income and assets above what the spousal impoverishment rules would have protected, and asks for a contribution based on that. Courts look at state support laws and the spouse’s actual needs. A negotiated agreement is common. The final result can range from no contribution to a substantial one.

The healthy spouse’s income

Refusal usually concerns assets, but the healthy spouse’s income may also be at issue. If the healthy spouse has high income, the state may seek a monthly contribution. On the other hand, a healthy spouse with low income may lose the right to an income allowance from the applicant’s income if they refuse to cooperate. Consider both before signing.

Documentation to keep

• copies of the signed refusal and the assignment;
• the approval notice;
• all letters from the state about support;
• any agreement or court order on contribution.

The bottom line

Spousal refusal can protect a healthy spouse’s savings in the right state and situation, but it is not free of risk. Know the state’s practice, compare the alternatives and get advice first.

Related guides

• Spousal impoverishment rules
• The CSRA
• Medicaid divorce
• Raising the spousal allowances

Last updated for 2026. General information only, not legal or financial advice. Medicaid Answers is a free educational resource published by Medicaid Answers Foundation.