Spousal Refusal or “Just Say No” To Preserve Assets and Protect Well Spouse

Spousal refusal, also known as Just Say No, is a Florida Medicaid planning strategy. Our Florida Medicaid Planning attorneys may recommend this strategy for married couples when one spouse needs long-term nursing care. Spousal refusal can help obtain Florida Medicaid nursing home benefits, thus avoiding financial devastation for the well spouse who does not need nursing care (aka the “community spouse”).

Florida is just one of two states in which this strategy is appropriate. Until spousal refusal was legitimized, many couples faced an agonizing choice:

• Either the well spouse had to impoverish him/herself to secure Medicaid benefits to cover the applicant spouse’s nursing home expenses,  or
• the couple had to divorce.

The Reason for Only Two Undesirable Choices

Under Florida law, Medicaid assesses eligibility for nursing home benefits based on the assets of both spouses, not just the applicant’s. Many married couples in these circumstances had to make the sad but financially necessary decision to divorce in order to protect the well spouse’s financial welfare. Spousal refusal provides a solution to that problem.

Consult A Florida Medicaid Planning and Elder Law Attorney

You should never attempt to use the spousal refusal strategy without the guidance of an experienced Florida Medicaid Planning attorney as there are specific steps that must be taken in a certain order and at specific time. If you try to do it on your own and do not follow the specific steps and timeline,  you could end up:

(1) Losing the Medicaid benefits to which you would have otherwise been entitled, or

(2) Creating significant tax liability which may be far more costly than the cost of a nursing home.

How Spousal Refusal Works

When Medicaid evaluates someone’s eligibility for nursing home benefits, the assets of both the applicant and the well spouse are considered. Under current regulations, the applicant may have no more than $2,000 in countable assets. The well spouse may have no more than $157,920 in countable assets (as of Jan. 1, 2025). Read more about countable and exempt assets here.

However, under Florida law, a spouse is NOT obligated to use his/her funds to pay for the support of the incapacitated spouse. This is the legal loophole that underpins the spousal refusal strategy.

To use spousal refusal, the following steps are taken:

• The spouse who is applying for benefits transfers all countable assets to the well spouse. It is immaterial if the transfer pushes the well spouse over the current limit for countable assets (currently $157,920).

This should be done as an interspousal transfer. Because interspousal transfers are exempt from any penalty under the five year look-back period, the look-back penalty does not apply.

The transfer should be done before the Medicaid application is submitted. The interspousal transfer can be done by the spouse who is applying for benefits, or by that spouse’s agent under his/her durable power of attorney. See below for important details on how the durable power of attorney must be structured.

• The well spouse makes a declaration that he/she will not be responsible for supporting the applicant and will not pay for his/her nursing home expenses.

• The applicant or the agent under the applicant’s power of attorney signs a document assigning any right the applicant has against the well spouse, to the State of Florida. This step is required under federal law. However, the Florida Supreme Court 30 years ago ruled that a spouse does not have a duty to provide his/her spouse with medical necessities. Therefore, under current state law the assignment is required, but it is unenforceable.

• The Medicaid application is submitted.

*Applicant’s Durable Power of Attorney: How It Affects Spousal Refusal: The durable power of attorney must give the agent the authority to transfer assets and sign the assignment. This is why it is so important for couples to avoid using do-it-yourself resources to create their respective durable powers of attorney. Your elder law attorney will create a document for you that allows each spouse to execute this type of transfer of assets. If the spouse who is seeking Medicaid benefits has a durable power of attorney that does not authorize this type of transfer and is already incapacitated, he/she cannot sign a new power of attorney, and spousal refusal may be off the table as a Medicaid strategy.  In this circumstance, a court guardianship would be required and the court would have to authorize the transfer and spousal refusal.

If you have existing powers of attorney that do not give this power to your spouse, we recommend you have it revised.

Spousal Refusal Impacts Income Diversion to the Well Spouse

It is important to note that under Florida law, the spouse who is in the nursing home and receives Medicaid benefits may divert some of his income to the well spouse to bring the well spouse’s income up to the he Minimum Monthly Maintenance Needs allowance, $2,643.75 (as of July 1, 2025). However, if spousal refusal is used, the well spouse is NOT entitled to spousal diversion.

Spousal Refusal Must be Used With Discretion

The spousal refusal strategy must be used with integrity and discretion. A competent Florida Medicaid Planning lawyer and elder law attorney will recommend it only when there is a real need to provide for the well spouse’s financial welfare. For example, it would be an inappropriate for a couple in their 80s who have a home, good income and several million dollars in assets. In fact, the Department of Children and Families might refer this matter to the legislature to serve as an example of why Florida law permitting spousal refusal should be changed, and also to penalize the interspousal transfers that occurred.

If you have a spouse or loved one who needs long-term nursing home care, consult with The Karp Law Firm attorneys. Along with spousal refusal, there are a variety of legal strategies that we can help you with that can help preserve your hard-earned assets. Call 561-625-1100.

Learn More About our Long-Term Care, Medicaid Benefits, and Veteran Benefits Law Practice:

• Florida Medicaid Eligibility Information
• Medicaid Asset Protection Trust
• Qualified Income Trust
• Documents Required to Apply for Florida Medicaid Benefits
• Veterans Benefits for Long-Term Care