In a marriage, unfortunately, one spouse often becomes ill before the other.  In the event that one spouse needs nursing home care an attorney will often tell the well spouse, known in Medicaid parlance as the community spouse, to disinherit the ill spouse.  “Disinherit” is an ugly word, implying lack of love and affection, and disinheriting a spouse is a very emotional and stressful moment in a couple’s marriage.  However, the reality is that attorneys recommend this course to protect the ill spouse.  

We often receive phone calls from children and spouses when they are told by an attorney to do this, because the explanation is generally not thorough or detailed. Generally, the reason attorneys recommend disinheriting a spouse is to ensure that if the well spouse passes away before the ill spouse, known in Medicaid parlance as the institutionalized spouse (the spouse who is in the nursing home), that the assets do not transfer to the institutionalized spouse.  Most people assume, without giving it much thought, that the ill spouse will pass away before the well spouse. 

However, if the ill spouse were to qualify for Medicaid, and the well spouse then passes away before the ill spouse, and has a will leaving everything to the ill spouse, then the ill spouse’s inheritance would immediately disqualify him or her for Medicaid benefits, and would therefore lose those benefits his or her family struggled to get for him or her.  The well spouse doing a new will which disinherits the ill spouse prevents this unexpected and unintended result, thus protecting at least a portion of the couple’s assets.  In this type of situation, Pennsylvania likely would still insist on the institutionalized spouse exercising his or her legal right to elect against the will of the deceased spouse, but that election would be a percentage of the assets, thus still protecting a significant portion of assets that would otherwise go to the nursing home, and not to the family.  

This recommendation is never made out of malice or because an attorney isn’t sensitive to the family dynamic, but rather to protect family assets for the future.  If you have been given this advice and do not understand why, please ask your attorney to explain; hopefully you will understand that it is for the ill spouse’s benefit.

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Jeffrey Bellomo