As many of you know, elder law attorneys are trained to look at the totality of the situation, not just what is presented as the crisis at hand. Therefore, we must not only prepare for the ill spouse’s current need, but also for the well spouse’s long term welfare – whether they remain healthy or suffer their own long term care need.

One strategy is known as a post eligibility transfer. In short, under Federal law, after the institutionalized spouse qualifies for Medicaid the well spouse’s assets are no longer required for the ill spouse’s care. This means that the exempt assets, such as the home, may be sold or transferred to provide much needed resources or added asset protection. Some states have disregarded Federal law and attempted to discontinue the ill spouse’s Medicaid benefits due to a post eligibility transfer under the theory that the proceeds from the sale of the exempt asset can now be used for the ill spouse’s care.

So far, I am unaware of New Jersey penalizing post eligibility transfers, but the following link from Pennsylvania gives me confidence that New Jersey families would prevail should the state attempt to disregard Federal law.

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