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Medicaid Divorce: Preserving Benefits, Minimizing Spend-Down, Protecting Assets, Electing Spousal Refusal

Family Law, Medicaid Regulations, and Public Policy Concerns to Safeguard Medical Benefits

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, February 21, 2024

Recorded event now available

or call 1-800-926-7926

This CLE course will focus on the complex issues confronting family law attorneys when representing aging clients who are married for a second or third time, or aging married clients who face possible nursing home admission. Remarried couples ages 50 and older have a divorce rate 2.5 times higher than couples who are in their first marriage. For those age 65 or older, in a remarriage, the divorce rate is more than three times higher than for those in first marriages. As the baby boomer generation ages, family law attorneys will encounter with increasing frequency divorces involving retired people with children from prior marriages.


When family law, estate planning, and elder law collide, an attorney faces ethical considerations and traps. Frequently, clients and their respective children and step-children fear the depletion of one divoring parent's assets for an ailing spouse's nursing home expenses. Attorneys advising these families must possess an understanding of not only divorce law, but also Medicaid regulations and trust considerations to navigate these complicated divorces.

Gifting assets to children will create a period of ineligibility before the spouse can qualify for Medicaid. Will the division of assets under a Medicaid divorce also be considered a disqualifying transfer? In a Medicaid divorce, the parties transfer a disproportionate amount of marital assets to the healthy spouse, minimizing spend-down to maintain the healthy spouse's quality of life, while obtaining Medicaid benefits for the spouse requiring long-term care assistance.

Counsel and their clients face a number of difficult questions: Will a family law judge approve a divorce with a substantially disproportionate division of assets? Is it ethical? Is a post-nuptial agreement an alternative? Are irrevocable trusts a planning opportunity? What are the other options?

Listen as our authoritative panel discusses the complexities of Medicaid divorce and trust considerations.



  1. Medicaid divorce and the practice of law
  2. Key data points
  3. Medicaid program overview and impact on elderly divorces


The panel will review these and other important issues:

  • Identifying your client's standing and interests
  • Determining your client's competence and whether a GAL needs to be appointed
  • Does the jurisdiction's law permit a power of attorney for signing a divorce agreement?
  • Does the state have standing to intervene in a divorce if one spouse is in a nursing home?
  • Will a judge approve a Medicaid divorce?
  • Should the marital assets be saved for the children or paid for their step-parent's care?


Gornbein, Henry
Henry S. Gornbein

Of Counsel
Lipson Neilson

Mr. Gornbein specializes in all areas of family law. He is a frequent writer for many bar related...  |  Read More

Rutkowski, Michael
Michael L. Rutkowski

The Rutkowski Law Firm

Mr. Rutkowski's practice focuses on estate planning, elder law, probate and trust administration.

 |  Read More
Peskin-Shepherd, Alisa
Alisa Peskin-Shepherd

Transitions Legal

Ms. Peskin-Shepherd is an expert in family law, focusing on Collaborative Divorce, Litigation, Mediation, as well as...  |  Read More

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