Should I get legally separated from my estranged husband to protect my home if he requires long-term care?

A fellow caregiver asked...

My husband and I have been separated for four years. He is 65, I am 63. He is on regular Social Security..his health is going down quite fast. I am concerned that he may need long-term care in the future. I am concerned about my home that I live in--if he should become disabled and have to be placed in a nursing home, could 'they' take my home from me? My husband has his own home that he lives in. He has no long-term care insurance and refuses to invest in it. Should I go ahead and divorce him or acquire legal separation papers to protect my assets? These questions are quite concerning to me....please provide me with legal advice. Thank you.

Expert Answer

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

Your concerns are entirely legitimate.  If your estranged husband were to require long term care in a nursing home, Medicaid would consider the assets of both of you in determining his eligibility.  Because Medicaid is a joint state and federal program there are some variations from state to state.  In some states, the strategy of "spousal refusal" can be used whereby, in a situation such as yours, your assets would not be considered as assets to be considered in the determination of your estranged husband's Medicaid eligibility where you have been separated for a considerable length of time and did not separate merely because he was going to enter a nursing home.  In that situation, you would be within your rights to refuse to cooperate with his application.  However, the more clear and effective way of achieving a separation of your assets in order to protect your assets from being considered in his Medicaid application would be to obtain a divorce.