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 then qualifies your spouse on their own income and resources alone, a planning option almost no other state offers.

This is Spousal Refusal under Social Services Law § 366(3)(a). It exists in only three states: New York, Florida, and Ohio. In New York, it is one of the most important planning tools in elder law, and one of the most misunderstood.

The mechanism is straightforward. The community spouse (the one who does not need Medicaid) signs a written declaration refusing to make their income or resources available to the applicant spouse. The applicant qualifies for Medicaid based only on their own resources. The well spouse keeps their assets, including assets that would normally be required to spend down or counted under spousal-impoverishment rules, without contribution.

The catch: New York retains a right of recovery against the refusing spouse for the cost of services provided to the applicant. The state can sue. In practice, NY rarely pursues recovery, and when it does, it usually settles at a discount.

This guide walks through how Spousal Refusal works, when to use it, when not to use it, the documentation, and what to expect if New York pursues a recovery action against the refusing spouse.

What Spousal Refusal Actually Is

Most state Medicaid programs require that a married applicant's spouse contribute to the cost of care up to certain federal limits. This is the federal spousal impoverishment framework: the community spouse keeps a Community Spouse Resource Allowance (in 2026: federal max $162,660) and a Community Spouse Monthly Income Allowance (in 2026: federal max $4,066.50/month), but assets above the CSRA threshold and income above the CSMIA threshold flow toward the applicant spouse's spend-down.

In New York, Florida, and Ohio, the spouse can opt out of this framework entirely by refusing to make their resources available.

The legal authority in New York: Social Services Law § 366(3)(a) declares that a person who is otherwise eligible for Medicaid shall not be denied solely because their spouse refuses to make their income or resources available. The federal authority sits in 42 USC § 1396r-5(c)(3)(A), the spousal impoverishment statute that allows states to grant categorical eligibility based on the applicant's resources alone when the spouse has refused to support the applicant.

What this means in practice: A 79-year-old NY resident who needs nursing home care has $40,000 in countable assets. Her husband, age 81, has $400,000 in countable assets that he plans to leave to their three children. Without Spousal Refusal, he would be required to spend down to the CSRA ceiling of $162,660, losing approximately $237,340 to spend-down. With Spousal Refusal, he keeps the full $400,000. The wife qualifies for Medicaid based on her $40,000, which she spends down to the $33,038 individual asset limit.

The wife is approved for Medicaid. The state pays for her nursing home care. NY then has the option of pursuing a recovery action against the husband, but in practice, NY rarely does.

The Right of Recovery

This is the part that makes Spousal Refusal a strategic question rather than a no-brainer.

When New York grants Medicaid to an applicant whose spouse has refused to support them, NY can sue the refusing spouse to recover the cost of services. The legal authority is SSL § 366(3)(a) itself, which states that the spouse retains the obligation to support, and 42 USC § 1396a(a)(17)(D) which preserves state authority to seek contribution from a non-applying spouse.

How often does NY actually pursue recovery?

  • Historically: rarely. NY's enforcement of right-of-recovery actions against refusing spouses has been inconsistent for decades. Many cases are settled before litigation. Many more cases never see action at all.
  • The pattern when NY does pursue recovery:
    • Action is brought in NY Supreme Court (sometimes Family Court)
    • State seeks the lesser of (a) the actual Medicaid expenditures or (b) the spousal contribution that would have been required absent the refusal
    • Settlement is the norm: typical settlements range from 10-50% of the claimed amount, depending on case specifics
    • Large estates and high-asset refusing spouses are more likely to be pursued
    • Smaller estates often go unpursued entirely
  • Recent enforcement trends (2020-2026): NY Office of the Attorney General and county DSS attorneys have shown periodic interest in tightening enforcement, but no systematic crackdown has materialized as of May 2026

The strategic calculation: The refusing spouse must weigh the certain savings (avoiding spousal-impoverishment-driven spend-down today) against the potential future cost of right-of-recovery litigation. For most NY high-asset families, the economics work in favor of refusal, even if NY pursues a settlement at 50% of services rendered, the refusing spouse often ends up substantially ahead of the alternative.

Spousal Refusal vs the Alternatives

Spousal Refusal is one of three or four major paths a NY couple has when one spouse needs Medicaid LTC. Comparing them:

Path Asset Protection Income Protection Right-of-Recovery Risk Best Used When
Spousal Refusal (SSL § 366(3)(a)) Full, well spouse keeps all assets above applicant's individual limit Full, well spouse keeps all income Yes, NY can sue Significant asset disparity; refusing spouse has substantial separate-titled assets; willingness to litigate
CSRA + CSMIA (federal spousal impoverishment) Up to $162,660 (2026 federal max) Up to $4,066.50/month CSMIA None Standard couples with assets in mid-six-figure range; no refusal appetite
Medicaid Asset Protection Trust (MAPT) Full (5+ years before LTC need) Income remains personal None, but 5-year lookback for institutional Couples planning 5+ years out; healthy applicant
Pooled Income Trust N/A (income-only mechanism) Full, excess income deposited into trust used for living expenses None Community Medicaid applicants over the income limit; not for institutional LTC
Spend-Down to Applicant Asset Limit None, spend down to $33,038 None None When the applicant has minimal-to-modest assets and CSRA covers the well spouse

For most NY couples, the right path is a hybrid:

  • Use MAPT if planning 5+ years out
  • Use Pooled Income Trust to handle excess income for Community Medicaid
  • Use Spousal Refusal when the asset disparity is so large that CSRA-only protection leaves substantial assets exposed to spend-down
  • Use CSRA + CSMIA for couples with moderate assets where Spousal Refusal's right-of-recovery risk doesn't justify the additional protection

When Spousal Refusal Makes Sense

The strategic sweet spot for Spousal Refusal:

1. Asset disparity is significant. If the well spouse has $500,000+ in countable assets and the applicant has $20,000-$50,000, Spousal Refusal protects the much larger asset base. CSRA at $162,660 leaves $337,340 exposed to spend-down, Spousal Refusal protects the full $500,000.

2. Most assets are titled in the well spouse's name. Spousal Refusal works best when the well spouse can credibly claim 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. If the well spouse has substantial independent income, the applicant's income limit ($1,836/month) plus the applicant's own resources may meet the categorical eligibility threshold without requiring CSMIA from the well spouse.

4. The applicant qualifies for Community Medicaid (not Institutional). Spousal Refusal works for both, but Community Medicaid is the more common use case in NY because home care is far more common than nursing home care, and right-of-recovery enforcement is statistically less aggressive on Community Medicaid cases.

5. The family is comfortable with right-of-recovery exposure. Some families would rather take the certain CSRA-only protection than gamble on whether NY pursues recovery. Spousal Refusal is for families willing to accept that risk.

6. The refusing spouse is in good health and has a long projected life. A surviving applicant with deceased refusing spouse leaves NY with a much more difficult recovery target (probate-only estate recovery; refusing spouse's assets may have already passed via non-probate transfers).

When Spousal Refusal Does NOT Make Sense

Spousal Refusal is wrong for many situations:

1. Asset levels are below the CSRA ceiling ($162,660). If the couple's combined countable assets are at or below CSRA, the well spouse keeps everything anyway under the standard spousal-impoverishment framework. Spousal Refusal adds right-of-recovery risk for no incremental protection.

2. Most assets are jointly titled. Joint accounts and JTWROS real estate can complicate Spousal Refusal. NY may take the position that jointly-titled assets are partially the applicant's resources, regardless of refusal. Restructuring before applying may be required.

3. The applicant has substantial separate assets. If the applicant has $200,000 in their own name, spending down to $33,038 means losing $166,962 of the applicant's own assets, Spousal Refusal does not protect those. A different strategy (gifting + 5-year lookback for institutional, or pre-need trust planning) may be required.

4. The well spouse is in fragile health. A young surviving widow facing her own LTC needs after Spousal Refusal recovery action is the worst-case scenario. Plan for both spouses' projected care needs together.

5. The well spouse cannot tolerate uncertainty. If the family will lose sleep over the right-of-recovery risk, take the certain CSRA-only protection. Sleep is worth more than statistical optimization.

6. The applicant needs Institutional Medicaid in the immediate future. Right-of-recovery actions are statistically more common on long-running institutional cases (multi-year nursing home stays accumulate large Medicaid bills, increasing NY's incentive to pursue). Short-stay nursing home cases have lower exposure than multi-year stays.

How to Execute Spousal Refusal

The mechanics:

Step 1, Consult a NY elder-law attorney. Spousal Refusal documentation must be precise; the wrong phrasing can either fail to invoke § 366(3)(a) or create unnecessary right-of-recovery exposure. This is not a DIY exercise.

Step 2, Restructure asset titling if needed. Pre-application, the well spouse may need to retitle joint accounts to separate titling, transfer JTWROS real estate to single-name title (subject to lookback considerations), and consolidate retirement accounts in the well spouse's name. This must happen far enough before application to avoid lookback complications.

Step 3, Prepare the written declaration. The refusal letter typically:

  • Identifies both spouses and their relationship
  • States explicitly that the well spouse refuses to make their income and resources available to the applicant
  • Cites SSL § 366(3)(a) as the legal authority
  • Is signed and notarized
  • Is dated contemporaneously with the Medicaid application

Step 4, Submit the Medicaid application with the refusal letter. Application processing follows the standard NY Non-MAGI track:

  • In NYC: NYC HRA via ACCESS HRA; forms include MAP-751W (Medicaid application), DOH-5143 (financial supplement), DOH-5139 (asset declaration)
  • Outside NYC: Local Department of Social Services in your county
  • The refusal letter accompanies the application as supporting documentation

Step 5, Anticipate questions from LDSS. Local Medicaid offices will sometimes scrutinize Spousal Refusal applications more aggressively than standard applications. Be prepared to:

  • Document that the refusing spouse's assets are separately titled
  • Provide income verification for the applicant only (the refusing spouse's income is not relevant to eligibility but may be requested)
  • Respond to follow-up questions about whether the refusing spouse contributed to applicant expenses historically

Step 6, Maintain documentation for potential right-of-recovery defense. Even after Medicaid approval, keep:

  • Copies of all financial records showing separate titling
  • Documentation of the well spouse's separate income sources
  • Copies of the refusal letter, application, and approval
  • Any communications with NY DSS or DOH about the case

Step 7, Be prepared for a recovery action. Most cases never see one. But if NY pursues recovery, the refusing spouse will need an attorney to negotiate settlement. Typical settlements range from 10-50% of claimed expenditures.

What Triggers a Right-of-Recovery Action

NY does not pursue every Spousal Refusal case. The factors that increase the likelihood of action:

1. Large Medicaid expenditures. Long-running nursing home cases (multi-year residents) accumulate substantial bills, increasing the state's incentive to pursue.

2. Visible large refusing-spouse assets. Refusing spouses with high-profile assets (large real estate holdings, prominent businesses, brokerage accounts visible in court records) are statistically more likely to be pursued.

3. Death of the applicant. Once the applicant passes, the case is "closed" from a benefits perspective and recovery actions become more straightforward. NY may pursue more aggressively post-death.

4. Improper titling or recent transfers. If pre-application asset restructuring looks like a sham (transfers to the well spouse just before application, with no underlying business reason), NY's recovery posture hardens.

5. Joint-titled assets. When jointly-titled assets exist, NY may attempt to reach those assets via constructive trust, fraudulent conveyance, or partial-ownership theories.

6. Residence in counties with aggressive enforcement. Some NY counties have historically been more aggressive than others. Consult local counsel.

Spousal Refusal and Community Medicaid

Spousal Refusal works for Community Medicaid (home care, MLTC, CDPAP, personal care), and the case math is often most attractive there.

The interaction with Pooled Income Trusts: A NY applicant can stack:

  • Spousal Refusal (to protect well spouse assets)
  • Pooled Income Trust (to handle the applicant's own excess income above $1,836/month)
  • The combined effect is often dramatic, the well spouse keeps all assets, and the applicant qualifies for full Community Medicaid (which can cover $5,000-$10,000+/month in home care).

The interaction with the unimplemented 30-month Community Medicaid lookback: As of May 2026, the 30-month lookback is NOT in effect for Community Medicaid. This means asset transfers between spouses pre-application can support Spousal Refusal restructuring without lookback penalty. Once the 30-month lookback activates (likely late 2026 or 2027 at earliest), this flexibility narrows significantly.

→ 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 IS in effect for Institutional Medicaid. Pre-application restructuring (retitling joint accounts to single-name, transferring JTWROS property) must be done outside the lookback window or it triggers transfer penalties.

Right-of-recovery exposure is statistically higher for institutional cases. Nursing home Medicaid expenditures accumulate quickly, a multi-year nursing home stay can produce six-figure Medicaid bills, increasing the state's incentive to pursue refusal recovery.

Caregiver Child Exemption and other transfer-exempt pathways may interact with Spousal Refusal planning. A caretaker child who lived with and provided care to the applicant for 2+ years can receive the home as an exempt transfer; this can be combined with Spousal Refusal in some cases.

Estate recovery (probate-only since 2011) plays into post-death calculus. If the refusing spouse predeceases the applicant, and assets pass via non-probate transfers (POD/TOD/joint tenancy/life estate/living trust), NY may have very limited recovery against the now-deceased refusing spouse's estate.

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

Common Pitfalls

1. Treating Spousal Refusal as a one-size-fits-all answer. Many couples don't need it. CSRA covers many cases. Spousal Refusal is for asset disparities significant enough to justify right-of-recovery risk.

2. Not retitling assets early enough. Restructuring jointly-titled assets to single-name title before application is essential, but must happen far enough in advance to avoid lookback complications (especially for institutional Medicaid with the 5-year lookback fully in effect).

3. Underestimating right-of-recovery exposure. NY rarely pursues recovery aggressively, but "rarely" is not "never." A $400,000 Medicaid expenditure followed by a recovery suit and a 50% settlement still costs the refusing spouse $200,000.

4. Confusing Spousal Refusal with divorce. Spousal Refusal is not a divorce. The marriage continues; the refusal is purely a Medicaid-eligibility mechanism. The spouses can continue to live together, share a household, and otherwise be married, they're just declaring that the well spouse will not make resources available for Medicaid purposes.

5. Overlooking the impact on the applicant's own assets. Spousal Refusal protects the well spouse's assets. The applicant's own assets must still be spent down to $33,038. Couples sometimes fail to plan for the applicant's own asset spend-down separately.

6. Not coordinating with Pooled Income Trust planning. For Community Medicaid applicants over the income limit, Spousal Refusal alone doesn't solve the income problem. The applicant typically needs both Spousal Refusal (for the well spouse's assets) AND a Pooled Income Trust (for the applicant's excess income).

7. Skipping legal counsel. Spousal Refusal requires precise documentation and strategic timing. NY elder-law attorneys typically handle these for $2,500-$7,500, orders of magnitude less than the assets being protected.

FAQ

Yes. Spousal Refusal is explicitly authorized by New York Social Services Law § 366(3)(a). A community spouse may submit a written declaration refusing to make their income and resources available to the Medicaid applicant spouse, and the applicant will be evaluated based solely on their own income and assets. The federal basis is 42 USC § 1396r-5(c)(3)(A). New York is one of only three states (along with Florida and Ohio) where this option is available.

In practice, Spousal Refusal does work: courts and Medicaid offices in New York routinely approve applications using it. The risk is the right-of-recovery action that NY retains under SSL § 366(3)(a). Historically, NY pursues recovery infrequently, and settled cases typically resolve at 10–50% of the claimed amount. Most cases where the refusing spouse has modest or mid-range assets are never pursued. High-asset refusing spouses and long-running nursing home stays draw more scrutiny. An experienced NY elder-law attorney can help you assess your specific exposure.

The Community Spouse Resource Allowance (CSRA) is the standard federal spousal-impoverishment protection: the well spouse keeps up to $162,660 (2026 federal max), and assets above that threshold must be spent down before the applicant qualifies. Spousal Refusal bypasses the CSRA entirely: the well spouse keeps all of their assets, regardless of how much that exceeds the CSRA ceiling. The trade-off is the right-of-recovery risk that comes with refusal but not with CSRA-only protection.

Generally yes, if the home is titled in the well spouse's name alone. The home is typically an exempt asset for the Medicaid applicant (it is the primary residence), and the refusing spouse's separately-titled property is outside the applicant's countable resources under Spousal Refusal. The complication arises with jointly-titled real estate: JTWROS property can create eligibility complications, and retitling to single-name ownership before application, outside the applicable lookback window, is usually part of the planning strategy.

You are not legally required to have an attorney, but Spousal Refusal documentation must be precise. Errors in the refusal letter's language can fail to invoke § 366(3)(a), expose the refusing spouse to greater right-of-recovery liability, or delay Medicaid approval. NY elder-law attorneys who handle these cases typically charge $2,500–$7,500 for the full Spousal Refusal engagement, a small fraction of the assets being protected. The NY State Bar Association Elder Law Section and NAELA New York chapter both maintain referral directories.

Where to Get Help

  • NY State Bar Association Elder Law Section, find a NY elder-law attorney with Spousal Refusal experience
  • NAELA New York chapter, National Academy of Elder Law Attorneys; NY-specific resources
  • NY Medicaid Helpline, 1-800-541-2831 (general questions only; Medicaid Helpline cannot give legal advice on Spousal Refusal)
  • NYC HRA Infoline, 718-557-1399 (NYC-specific Medicaid intake questions)
  • Local Department of Social Services, for non-NYC NY residents; intake and processing for Non-MAGI Medicaid applications including Spousal Refusal cases

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.

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Brevy Care Team

Expert eldercare guidance from Brevy's team of healthcare professionals and researchers.