It is not unusual for a New Yorker who is faced with the prospect that their spouse will need long-term care in a nursing home (or at home for the rest of their life) to seriously contemplate the possibility of divorce. 

While divorce has been considered an option by many within the State, in most instances it is not realistic or financially viable. New York is an “equitable distribution” state when it comes to the division of marital property and debts for the purposes of divorce. The law requires that marital property (property acquired during marriage with marital assets) and debts be divided as “equitably” as possible. New York is not a “50/50” state or community property state. 

Thus, a division of property that is not equitable when considering factors such as the length of the marriage, the health of each spouse, the spousal contribution (financial or otherwise) to the household, the earning potential of each spouse, and the custody and/or support of children may, in reality, be considered a sham divorce when one spouse needs to apply for Medicaid.¹ For example, consider a couple who has been married for more than twenty (20) years, has over a million dollars of marital property, and agrees to a divorce wherein the ill spouse (i.e., the spouse applying for Medicaid) will receive five percent (5%) of the marital property. This couple should be very concerned that Medicaid could deny the ill spouse’s Medicaid application and determine that the well spouse’s obligation of support has not ended. 

The courts, when interpreting Section 236B of New York’s Domestic Relations Law (DRL) relevant to equitable distribution and maintenance, have consistently done so in conjunction with Section 5-311 of the General Obligation Law of New York (GOL).² The courts have held that spouses have a duty to support each other, and that if one spouse is currently or is in danger of becoming a public charge (i.e., requiring support of the state) maintenance should be granted in all events.³ Furthermore, this obligation of support cannot be waived in a prenuptial agreement, postnuptial agreement, or agreement of separation and/or divorce when one spouse is not self-supporting and is likely to become a public charge⁴—for example, if a spouse is in need of Medicaid nursing home or home care benefits, which are “means tested” entitlement programs that have income and resource financial eligibility requirements.⁵

In Sass v. Sass, the court held that the DRL requires that maintenance be granted if there is a danger of a spouse becoming a public charge.⁶ Thus, in Sass v. Sass, where the spouse was already a public charge, the court concluded that reducing spousal maintenance and support would violate the spirit of Section 5-311 of the GOL and the system that has been in place where Medicaid is the “payer of last resort.” 

There are a number of other options in New York that make divorce unnecessary when a spouse needs Medicaid home care and/or nursing home Medicaid:

(a) Spouses can transfer assets (resources) to each other without creating any lookback period for themselves, and thus, assets can be transferred from the ill spouse to the well spouse so that the ill spouse may become financially eligible for Medicaid.⁷  

(b) The well spouse can refuse to make their resources and income available for the support of the ill spouse by filing a spousal refusal letter along with the ill spouse’s Medicaid application.

(c) When a spousal refusal letter is filed, the Medicaid applicant (or someone on their behalf) must execute and file with Medicaid an “assignment of support” letter, thereby transferring the Medicaid applicant’s right to seek spousal support from their spouse to New York’s Department of Health.⁸

(d) Medicaid has the right to sue the refusing spouse for support for the amount they have expended on the cost of care for the Medicaid recipient, which in a nursing home Medicaid case is often significantly less than what would be expended if one were to pay the nursing home privately.⁹ (Medicaid does not consistently sue the refusing spouse for support and, in some counties, it never does.)

(e) Presently there is no lookback period in existence for home care Medicaid in New York. Thus, resources (assets) can be transferred to an Irrevocable Medicaid Asset Protection Trust (MAPT) or others while only creating the five (5) year lookback period for nursing home Medicaid.¹⁰ 

(f) New York Medicaid does not count the face value of retirement assets (IRAs, 401Ks, 403Bs, and Qualified Annuities) as available resources for Medicaid eligibility purposes. However, Medicaid will force a Medicaid recipient to take their required minimum (or maximum) distribution and count it toward their income eligibility for Medicaid, irrespective of their age.¹¹

(g) In New York, a recipient of Medicaid home care can enroll in a “pooled community trust” so that their income in excess of the Medicaid maximum can be used to pay for their day-to-day living expenses.¹²

It should also be considered that, often, by the time one is in need of Medicaid nursing home care and/or home care they are no longer mentally competent to enter into an agreement of separation and/or divorce or comprehend the consequences thereof. A Mental Hygiene Law Article 81 Guardian can defend a divorce proceeding in New York; however, they are unable to commence one.¹³

In conclusion, there are a wealth of options and strategies available that in most instances make divorce unnecessary for the purposes of long-term care planning—especially if the financial settlement will not be truly “equitable”!    

Anthony J. Enea, Esq., is the managing attorney of Enea, Scanlan and Sirignano, LLP. He focuses his practice on Wills, Trusts, Estates and Elder Law. Anthony is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association and is the past Chair of the 50+ Section of the NYSBA.  He is a Past President and founding member of the New York Chapter of the National Academy of Elder Law Attorneys. Anthony is also a Past President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is fluent in Italian. He can be reached at (914) 948-1500 or at a.enea@esslawfirm.com

I wish to acknowledge the assistance of firm Associate Samantha Mariano with the research for this article.  

 

Endnotes

1. N.Y. Dom. Rel. Law § 236B(5)(C) (McKinney 2025).

2. See, e.g., Greschler v. Greschler, 51 N.Y.2d 368, 434 N.Y.S.2d 194 (1980).

3. d. (citing N.Y. Gen. Oblig. Law § 5-311 (McKinney 2025).

4. Id.

5. Sass v. Sass, 276 A.D.2d 42, 716 N.Y.S.2d 686 (2d Dep’t 2000)(citing McMains v. McMains, 15 N.Y.S.2d 283, 258 N.Y.S.2d 93 (1965); Curran v. Curran, 169 A.D.2d 975, 564 N.Y.S.2d 873 (3d Dep’t 1991); Lasky v. Lasky, 163 Misc.2d 859, 622 N.Y.S.2d 649 (Sup. Ct. Nassau County 1994), aff’d. 216 A.D.2d 366, 628 N.Y.S.2d 532 (2d Dep’t 1995); N.Y. Dom. Rel. Law § 236 (B)(3) (McKinney)).

6. d.

7. N.Y. Soc. Serv. Law § 366 (5)(d)(3)(ii)(McKinney 2025).

8. N.Y. Soc. Serv. Law § 366-c(5)(b) (McKinney).

9. 42 U.S.C. § 1396s-5(C)(3); N.Y. Soc. Serv. Law §§ 366(3)(a), 366-c(5)(b)); In re Shah, 95 N.Y.2d 148, 711 N.Y.S.2d 824 (2000).

10. Harry S. Margolis et al., N.Y. Elder Law Practice § 14:27 (2025 ed.); N.Y. Soc. Serv. Law § 366(2)(b)(2)(iii)(A) (McKinney).

11. Harry S. Margolis et al., N.Y. Elder Law Practice § 14:15 (2025 ed.); GIS 98 MA/024.

12. 42 U.S.C. § 1396p(d)(4)(C)(i); N.Y. Soc. Serv. Law § 366(2)(b)(2)(b)(2)(iii)(B) (McKinney).

13. N.Y. Mental Hyg. Law § 81.00 (McKinney).