Question: A couple is on their second marriage and signed a pre-nuptial agreement at the time of their marriage 15 years ago. Husband now has severe Alzheimer’s and his funds are expended. Family home was acquired years ago in her name with her funds and she has maintained her own separate accounts. If she divorce him, will he qualify for Medicaid or will her assets continue to be includable?
Answer: This is a very complex situation. The short answer is that in many states if there is a divorce and the court orders assets to be split in a certain way, the Medicaid agency will respect that court order and determine Medicaid eligiblity just using the assets of the ex-spouse who lives in the nursing home. In some states this will not work. Also, during a divorce, a court may require either a guardianship or the appointment of a guardian ad litem to protect the interests of the sick spouse, including the validity of any pre-nuptual agreement. Please check with both an elder law attorney and a divorce attorney in your state to confirm whether this advice applies to you and your situation.
Ben A. Neiburger, JD, CPA
Neiburger Law, Ltd.
Elmhurst, Illinois 60126