NY Spousal Refusal 2026, SSL § 366(3)(a), How It Works, When to Use It

If your spouse needs Medicaid long-term care and you do not, New York lets you legally refuse to make your own income and resources available toward their care. Medicaid eligibility for your spouse is then determined without counting your income and resources at all. That mechanism is NY spousal refusal, and it comes from New York Social Services Law (SSL) § 366(3)(a).1

The statutory basis for refusal, and the recovery rights the State keeps when you use it, are specific to each state's own law, so this guide covers New York only. In New York, spousal refusal is one of the most important planning tools in elder law, and one of the most misunderstood.

The mechanism is straightforward: the community spouse signs a written declaration refusing to make their income or resources available, and the applicant is then assessed on their own resources alone.

There is a catch. Under SSL § 366(3)(a), furnishing Medicaid to the applicant creates an implied contract with the refusing spouse, and the State may sue to recover the cost of services provided to the applicant. New York exercises that right of recovery at the agency's option, and it does not publish how often or how aggressively local districts pursue it. This guide walks through how the mechanism works, when to use it, when not to, and what to expect if the State seeks recovery.

Key Takeaways

• Spousal refusal under SSL § 366(3)(a) lets a community spouse legally refuse to make income and resources available to a Medicaid applicant spouse. Eligibility is then determined on the applicant's own income and assets only, even where the refusing spouse's assets far exceed the Community Spouse Resource Allowance (CSRA) under New York's spousal-impoverishment rules.1
• New York retains a statutory right of recovery against the refusing spouse. Furnishing Medicaid creates an implied contract, and the State may refer the matter to court to recover the cost of services, at the agency's option.
• The community spouse must still cooperate by disclosing resource information. Refusal to contribute is allowed; refusal to provide the information needed to determine eligibility is grounds for denying the applicant's Medicaid.
• Spousal refusal works best when there is a meaningful asset disparity, the well spouse holds substantial assets that CSRA-only protection would leave exposed, and the applicant has minimal assets of their own.
• Spousal refusal does NOT excuse the applicant's own assets. In 2026, the applicant must still spend down their own countable assets to New York's Non-MAGI resource limit of $33,038 for a household of one.2
• The documentation is a written declaration refusing to make resources available, submitted with the Medicaid application.
• Spousal refusal works for both Community Medicaid and Institutional (nursing home) Medicaid. A different planning calculus applies in each case.
• Always consult a New York elder-law attorney before using spousal refusal. The strategic question is rarely whether the mechanism works (it does); it is whether the right-of-recovery exposure makes it worthwhile versus alternatives like CSRA, a Medicaid Asset Protection Trust (MAPT), or a Pooled Income Trust.

What NY Spousal Refusal Actually Is

Most state Medicaid programs require a married applicant's spouse to contribute to the cost of care up to federal limits. Under the federal spousal impoverishment framework, the community spouse keeps a Community Spouse Resource Allowance (CSRA, 2026 federal max $162,660) and a Community Spouse Monthly Income Allowance (CSMIA, 2026 federal max $4,066.50/month); assets and income above those thresholds flow toward the applicant's spend-down. In New York, the community spouse can opt out of that framework by refusing to make their resources available, and the applicant is then evaluated on their own income and resources alone.2

The legal authority in New York. Social Services Law § 366(3)(a) provides that Medicaid shall be furnished to an applicant whose responsible relative (including a spouse) has sufficient resources where those resources "are not available to such applicant because of ... the refusal or failure of such relative to provide the necessary care and assistance." The federal mechanism sits in 42 U.S.C. § 1396r-5(c)(3): the institutionalized spouse is not made ineligible by the community spouse's resources once the institutionalized spouse assigns their support rights to the State (or cannot do so due to impairment, or denial would work an undue hardship). And 42 U.S.C. § 1396a(a)(17)(D) treats the spouse as the narrow exception within which counting a relative's resources is allowed at all.1

What this means in practice. Consider an illustrative case: a New York resident who needs nursing home care has $40,000 in countable assets, and her husband has $400,000 he plans to leave to their children. Without spousal refusal, the couple would protect only up to the 2026 CSRA ceiling of $162,660, leaving roughly $237,340 exposed to spend-down. With spousal refusal, he keeps the full $400,000. The wife qualifies on her own $40,000, which she spends down to New York's $33,038 household-of-one limit, and Medicaid pays for her care. New York then has the statutory option of going to court to recover the cost of services from the husband.2

The Right of Recovery

This is the part that makes spousal refusal a strategic question rather than a no-brainer.

Under SSL § 366(3)(a), furnishing Medicaid to the applicant "shall create an implied contract" with the refusing spouse, "and the cost thereof may be recovered from such relative." The New York State Department of Health (NYS DOH) explains the sequence in its Information Notice to Couples with an Institutionalized Spouse: if the community spouse refuses to make income available as requested, NYS DOH or the local department of social services "at its option, may refer the matter to court for a review of the community spouse's actual ability to pay," and may likewise refer the matter to court "for recovery from the community spouse of any Medicaid expenditures for the institutionalized spouse's care."1

Two features of that authority matter for planning:

• Recovery is discretionary, not automatic. The State pursues it "at its option." New York does not publish how often, in which counties, or at what amounts local districts bring these actions, so anyone weighing refusal should get a New York elder-law attorney's read on local practice rather than rely on a published rate.
• Refusal does not excuse disclosure. A community spouse may refuse to contribute, but must still cooperate by disclosing resource information. "Refusal to provide the necessary information shall be reason for denying Medicaid for the institutionalized spouse as Medicaid eligibility cannot be determined," subject to an undue-hardship exception tied to the applicant's assignment of support rights.1

Before any court referral, there is an intermediate step: Medicaid "will request a contribution from a community spouse of 25 percent of the amount [of] their otherwise available income that exceeds the minimum monthly maintenance needs allowance plus any family member allowance(s)," and the community spouse may schedule a conference with the local district to discuss it.

The strategic calculation. The refusing spouse weighs the certain savings (avoiding spend-down today) against the uncertain future cost of a recovery action. For many high-asset New York families the math favors refusal, but because the State's enforcement posture is discretionary and unpublished, the size of that downside is genuinely uncertain, which is why this is an attorney's call.

Spousal Refusal vs the Alternatives

Spousal refusal is one of several major paths a New York couple has when one spouse needs Medicaid long-term care. In 2026, CSRA-only protection caps at the greater of New York's $74,820 minimum or the spousal share, up to a $162,660 federal maximum; spousal refusal removes that cap entirely. Comparing the paths:2

For most New York couples the right answer is a hybrid of these paths rather than any one of them, which is the conversation to have with counsel.

When NY Spousal Refusal Makes Sense

The strategic sweet spot for spousal refusal:

1. Asset disparity is significant. If the well spouse holds $500,000 or more in countable assets and the applicant has $20,000 to $50,000, spousal refusal protects the much larger asset base. In 2026, CSRA-only protection caps at $162,660, leaving roughly $337,340 of a $500,000 estate exposed to spend-down, while spousal refusal protects the full amount.2

2. Most assets are titled in the well spouse's name. Spousal refusal works best when the well spouse can credibly show those assets are theirs alone: separately titled real estate, separate retirement accounts, separately titled brokerage. Jointly titled assets create complications.

3. The well spouse has independent income. In 2026, New York's SSI-related (Non-MAGI) Medicaid income level is $1,836/month for a household of one, and an applicant above it must spend down to that level. If the well spouse has substantial independent income, the applicant may meet eligibility on their own income (or route excess income through a Pooled Income Trust, subject to the married-couple limit below) without the well spouse contributing income.2

4. The applicant qualifies for Community Medicaid. Spousal refusal works for both settings, but Community Medicaid is the more common use case in New York because home care is far more common than nursing home care.

When Spousal Refusal Does NOT Make Sense

Spousal refusal is wrong for many situations:

1. Asset levels are at or below the CSRA ceiling. In 2026, CSRA-only protection lets the community spouse keep up to $162,660. If the couple's combined countable assets are at or below that, the well spouse keeps everything anyway under the standard spousal-impoverishment framework, so spousal refusal adds right-of-recovery risk for no incremental protection.2

2. Most assets are jointly titled. New York may treat joint accounts and right-of-survivorship real estate as partly the applicant's resources regardless of the refusal, so restructuring before applying may be required.

3. The applicant has substantial separate assets. Spousal refusal protects only the refusing spouse's assets. If the applicant has $200,000 in their own name, spending down to New York's $33,038 household-of-one limit still means parting with roughly $166,962 of the applicant's own assets. A different strategy (advance gifting against the 5-year lookback for institutional care, or pre-need trust planning) may be needed.2

4. The well spouse is in fragile health. A surviving spouse facing their own long-term-care needs after a recovery action is the worst case. Plan for both spouses' projected care needs together.

5. The family cannot tolerate the uncertainty. Because New York's enforcement posture is discretionary and unpublished, the downside is genuinely uncertain. A family that would lose sleep over it may prefer the certainty of CSRA-only protection.

6. The applicant needs Institutional Medicaid right away. A multi-year nursing home stay accumulates large Medicaid bills, raising the dollar amount the State could seek in any recovery action; a short stay carries lower stakes.

How to Execute Spousal Refusal

The mechanics:

What Can Make a Recovery Action More Likely

New York does not publish criteria for when a district refers a spousal-refusal case to court, and enforcement is discretionary. The following are practical considerations New York elder-law attorneys weigh when sizing the downside, not a published enforcement formula:

• Large Medicaid expenditures. A long nursing home stay accumulates substantial bills, raising the dollar stakes the State is weighing.
• Visible, high-value refusing-spouse assets. Large, easily identified holdings present a clearer recovery target than modest ones, and pre-application restructuring that looks contrived can invite scrutiny.
• Jointly titled assets. The State may argue these are partly the applicant's, or pursue them through constructive-trust or fraudulent-conveyance theories.
• County practice. Enforcement appetite has historically varied by county; local counsel is the only reliable read on a given district.

Spousal Refusal and Community Medicaid

Spousal refusal works for Community Medicaid (home care, Managed Long-Term Care (MLTC), the Consumer Directed Personal Assistance Program (CDPAP), and personal care), and the case math is often most attractive there.

The interaction with Pooled Income Trusts. A Pooled Income Trust is a nonprofit-administered trust under 42 U.S.C. § 1396p(d)(4)(C). Income diverted into a certified disabled person's own exception trust is excluded when determining income eligibility under community rules, which is how an applicant over New York's $1,836/month SSI-related income level for a household of one can qualify without surrendering the excess to a spend-down.2

Do not assume the two stack. New York's own consumer notice on trusts states that if you are married and your Medicaid eligibility is determined under spousal impoverishment budgeting with post-eligibility rules (for example, if you are enrolled in a Managed Long Term Care plan), any of your income placed in a trust will count in determining your eligibility. Spousal refusal is by definition a married-couple strategy, so ask your local district and your attorney how your case will be budgeted before you fund a trust.3

The interaction with the 30-month Community Medicaid lookback. New York authorized a 30-month transfer-of-assets lookback for community-based long-term care by a statutory change of April 2, 2020, under which the CBLTC transfer rules are stated to be effective October 1, 2020; the State sought CMS approval through an 1115 waiver amendment request and said the earliest date it would seek implementation was March 31, 2024. We could not confirm from any New York or federal source whether that lookback is being applied to applications today, so do not treat home-care transfers as penalty-free. Confirm the current CBLTC transfer rules with your local district or a New York elder-law attorney before making any gift or retitling, and time any spousal-refusal restructuring around what they tell you.2

→ See: 30-Month Lookback | Pooled Income Trust | Community Medicaid

Spousal Refusal and Institutional Medicaid

For Nursing Home Medicaid, spousal refusal still works, but the calculus differs:

The 5-year (60-month) lookback applies to Institutional (nursing home) Medicaid. Pre-application restructuring (retitling joint accounts to single-name, transferring survivorship property) must happen outside the lookback window or it triggers a transfer penalty.2

Recovery stakes are larger for long institutional stays. A multi-year nursing home stay can produce six-figure Medicaid bills, raising the amount the State could seek if it elects to pursue recovery.

Estate recovery reaches the probate estate only. Since the revised regulation implementing New York's expanded definition of "estate" expired on 12/6/2011, local districts must not include assets that pass outside of the probate estate as part of a deceased Medicaid recipient's estate for recovery purposes. New York's guidance states that rule at exactly that level of generality and does not enumerate which asset forms pass outside probate, so have counsel look at how your specific holdings are titled rather than assuming.2 Keep this separate from the SSL § 366(3)(a) right of recovery: that is a contract-based claim against the refusing spouse, not an estate-recovery claim against the Medicaid recipient.1

→ See: LTC Nursing Home | Estate Recovery | Spousal Impoverishment

Common Pitfalls

1. Underestimating right-of-recovery exposure. Discretionary is not the same as nonexistent. A successful recovery action can cost the refusing spouse a meaningful share of what refusal protected, and the State does not publish the odds in advance.

2. Confusing spousal refusal with divorce. It is not a divorce. The marriage continues and the spouses can keep living together; they are only declaring that the well spouse will not make resources available for Medicaid purposes.

3. Overlooking the applicant's own assets. Spousal refusal protects the well spouse's assets. The applicant's own countable assets must still be spent down to New York's $33,038 household-of-one limit in 2026. Couples sometimes fail to plan for that spend-down separately.2

4. Assuming a Pooled Income Trust solves the income side. Spousal refusal addresses the well spouse's assets, not the applicant's excess income, and a married applicant budgeted under spousal impoverishment with post-eligibility rules does not get the trust's income disregard. Settle how your case will be budgeted first.3

Where to Get Help

Learn More

Find personalized help with New York spousal refusal at brevy.com.

The information on Brevy.com is for educational purposes only and is not a substitute for professional legal, financial, or medical advice. Rules vary by state and program and change frequently. Always verify with the relevant agency or a qualified professional. Brevy is not a law firm, financial advisor, or healthcare provider.