By Sally Wagley, Maine elder law and estate attorney
We have had a number of clients, either divorced or widowed, become happily married later in life. Sadly, after a number of years of love and companionship, one of them may start to decline and need expensive care in a nursing home or assisted living facility. For purposes of discussion, we’ll assume that the husband is the one who needs institutional care, with the wife remaining at home. The wife may find out to her chagrine that she is expected to use her own assets — accumulated by her before the marriage from a lifetime of work –on her husband’s nursing home costs. She may find out that after he has depleted his own funds, he will not qualify for state assistance through Maine’s Medicaid program (called MaineCare) until she has spent down her own funds to a certain point. This causes her great anxiety, for two reasons: most important, she wants to make sure that she has enough to live comfortably for the rest of her life; in addition, she may want to be able to pass on assets to her own children.
What can a couple do in this situation? Advance planning, while both are still healthy, is the best option. If they qualify for and can afford long term care insurance, that will make it less likely that the wife will have to spend down her own savings. Another option is an irrevocable trust, whereby the wife places some of her own assets into an irrevocable trust, naming one or more of her children as trustees. She gives up control of the principal in the trust but will receive income from it. In this way, she can put some of her assets off limits for purposes of her husband’s possible future long term care expenses. In order for her to safely do this, however, she must feel reasonably confident that neither she nor her husband will need long term care in the next five years, as MaineCare has a “five-year look-back” rule which penalizes people who transfer assets in order to qualify for MaineCare.
For a couple who is already in crisis, there are still options. The spouse may purchase a certain type of annuity which meets the requirements of the law. This annuity will protect her assets while providing a stream of income. She can invest her countable assets into exempt assets, such as repairs or improvements to her home, or the purchase of a newer car.
As a last resort, some spouses choose to divorce for the purpose of preserving assets. This is a wrenching decision for most clients, but may be the only option for ensuring that the spouse at home to preserve what she has worked so hard for over the years. This divorce, however, will not prevent the wife from continuing to provide love, companionship and care to her husband, just as if they continued to be married.