1. The Fear, and Why the Law Disagrees With It
Most spouses walk into this conversation believing the same thing: that before Medicaid pays a dime, the couple must spend down to nothing, and the husband or wife at home goes broke alongside the one in care. That fear has a name in the law, spousal impoverishment, and Congress wrote a set of rules specifically to prevent it. Florida applies them.
The short version: the spouse who stays home (the law calls you the community spouse) keeps the house, keeps every dollar of your own income, and keeps a protected share of the couple’s savings. The question is never whether you will be protected. It is how much more than the default the right planning can protect.
2. What You Can Keep: the $162,660 Asset Allowance
The applicant spouse can have no more than $2,000 in countable assets. You are not held to that number. The community spouse keeps a separate protected share, called the community spouse resource allowance, of up to $162,660 in countable assets under Florida’s current rules.
And "countable" is narrower than most people think. The allowance sits on top of the assets that never count at all: the home you live in, one vehicle, household goods and personal belongings, and prepaid burial arrangements. A couple with a paid-off house, a car, and $150,000 in the bank is already under the limits before any planning happens.
Holding more than the allowance is not a dead end either. Excess countable assets can often be converted rather than spent: a Medicaid-compliant annuity (a single-premium annuity drafted to meet federal safe-harbor rules) turns a lump of countable savings into an income stream payable to you, and your income is uncounted. Done correctly, the money serves you instead of disqualifying your spouse. Done incorrectly, the same annuity creates a transfer penalty, which is why the drafting rules matter. Estimate what a transfer penalty would look like →
3. Your Income Is Never Counted
Your Social Security, your pension, your paycheck if you still work: none of it is counted toward your spouse’s eligibility, and none of it has to go to the nursing home. Only the applicant’s income is tested, against Florida’s cap of $2,982 per month. If your spouse’s income is over the cap, that is fixable with a qualified income trust (a special account, sometimes called a Miller trust, that holds the income over the cap so your spouse still qualifies). We set those up for a flat $750.
Income can also flow toward you. If your own income is low, Florida’s rules let part of your spouse’s income be diverted to you each month instead of going to the facility, under what the rules call the minimum monthly maintenance needs allowance. The idea is simple: the spouse at home is entitled to enough to live on. The allowance figures adjust periodically, so we confirm the current numbers at the consult rather than print stale ones here.
Worried about what happens to the spouse at home?
Book a free 30-minute consult. We will map your numbers against the spousal protections and tell you plainly what is already safe and what planning can add. Handled remotely anywhere in Florida.
Book your free consult4. The House Is Safe While You Live in It
With a spouse living in the home, the homestead is an exempt asset with no equity cap. (The equity limit that applies to single applicants does not apply when a spouse is in residence.) Nobody makes you sell it, and it does not count against eligibility.
The longer-term question is estate recovery: after a Medicaid recipient dies, Florida can try to recoup what it paid for their care. Two protections matter here. First, recovery cannot proceed while there is a surviving spouse. Second, Florida’s recovery reaches only assets that pass through probate, which is the risk a lady bird deed solves by passing the home outside probate entirely. The full picture is on our page can a nursing home take your house in Florida; the short answer for a married couple is that the home is protectable at every stage, but the after-death piece takes a deed or a trust, not luck.
5. Transfers Between Spouses Are Penalty-Free
Most families have heard of the five-year look-back and assume any movement of assets triggers a penalty. Between spouses, it never does. Federal law exempts transfers to your spouse in any amount from the look-back. Retitling accounts, moving investments, deeding property from the applicant to the community spouse: no penalty, no waiting period, no cap.
That single rule is the engine behind most married-couple Medicaid planning. The assets move to the community spouse penalty-free, and the planning work is what happens next: keeping you under the resource allowance, converting any excess into protected income, and protecting the home for the family afterward. For couples, this usually means nothing needs to be gifted away at all, no penalty to create and no five-year clock to wait out. Compare that with the five-year trust planning that single applicants lean on, and the value of the spousal rules becomes obvious.
6. Spousal Refusal: the Deliberate Tool
Florida also recognizes a more assertive strategy called spousal refusal. The couple shifts assets to the community spouse (penalty-free, as above), and the community spouse signs a written refusal to make those resources available for the applicant’s care. Federal law then requires the state to determine eligibility based on the applicant’s own assets.
It works, and it deserves honest framing. The state in theory keeps the right to pursue support from the refusing spouse, so this is not a loophole to use casually; it is a deliberate strategy with tradeoffs, used when the numbers justify it and with counsel who can weigh the exposure. If your assets are well above the resource allowance, it belongs on the table at the consult.
7. What This Looks Like as a Plan
Every married Medicaid case runs the same sequence. Sort exempt assets from countable ones. Apply the $162,660 allowance. Move what needs moving between spouses, penalty-free. Convert any excess into protected income for the spouse at home. Fix any income-cap problem with a qualified income trust ($750). Protect the home for after both spouses are gone, usually with a lady bird deed. The step-by-step eligibility rules are on how to qualify for Medicaid in Florida, and the eligibility calculator gives you a first read on your own numbers.
The qualified income trust is a flat $750. The broader Medicaid work, application handling, asset restructuring, annuity planning, spousal refusal, is quoted as a flat fee at the consult once we see the actual numbers, because the right scope depends entirely on what you own and what your spouse’s income looks like. Our Medicaid planning page covers how we work.
Frequently Asked Questions
What Is a Community Spouse in Florida Medicaid?
The community spouse is the husband or wife who stays at home (in the community) while the other spouse needs nursing-home care and applies for Medicaid. Federal and Florida law give the community spouse a protected set of resources and income, often called the spousal-impoverishment protections, so that one spouse’s care does not leave the other destitute. The protections include a resource allowance of up to $162,660 in 2026, the home itself, a vehicle, and in many cases a share of the applicant’s income.
How Much Money Can the Healthy Spouse Keep?
In 2026, the community spouse can keep up to $162,660 in countable assets, on top of the applicant’s own $2,000 limit. That allowance is separate from exempt assets, so it does not include the home you live in, one vehicle, household goods, or prepaid burial arrangements. Couples with more than the allowance are not stuck either: tools like a Medicaid-compliant annuity can convert excess countable assets into protected income for the spouse at home.
Does the Healthy Spouse’s Income Count for Medicaid?
No. Your own income, your Social Security, your pension, your paycheck, is never counted against your spouse’s eligibility, and you are not required to spend it on the nursing home. Only the applicant’s income is tested against Florida’s cap, which is $2,982 per month in 2026. It can also flow the other way: if your income is low, part of your spouse’s income can be diverted to you each month under the minimum monthly maintenance needs allowance. The current allowance figures change periodically, so we confirm them at the consult.
Can Medicaid Take Our House if My Spouse Goes Into a Nursing Home?
Not while you are living in it. The home is an exempt asset while a spouse lives there, with no equity cap applied in that situation. And Florida’s estate-recovery program, the state’s effort to recoup care costs after a recipient dies, cannot proceed while there is a surviving spouse. The home does deserve attention in the plan, often with a lady bird deed, so that it stays protected after both spouses are gone, but the fear of losing the house while you live in it is not how the law works.
Can I Transfer Assets to My Spouse Without a Penalty?
Yes. Transfers between spouses are completely exempt from the five-year look-back. Moving accounts, retitling property, or shifting investments from the applicant to the community spouse creates no penalty at all, in any amount. This is one of the most important and least understood rules in Medicaid planning: gifts to children trigger penalties, but transfers to your husband or wife never do. The planning question is what to do with the assets once they are in the community spouse’s name, and that is where the strategy comes in.
What Is Spousal Refusal in Florida?
Spousal refusal is a strategy where assets are shifted to the community spouse, who then signs a written refusal to make their resources available for the applicant’s care. Federal law then requires the state to determine the applicant’s eligibility based on the applicant’s own assets. It exists in Florida and it can work, but it deserves honest framing: the state in theory retains the right to pursue support from the refusing spouse, so this is a deliberate strategy to use with counsel, not a form you download. We walk through whether it fits your situation at the consult.
Common Situations
"We have to spend it all first." A wife in Cape Coral, whose husband had just entered memory care, came in convinced the couple’s $190,000 in savings had to be gone before Medicaid would help. The house and car were exempt, $162,660 fell inside her resource allowance, and a small Medicaid-compliant annuity converted the rest into income payable to her. He qualified; she kept her home, her car, her income, and effectively all of the savings.
The low-income wife at home. A husband’s pension and Social Security ran well over the income cap, while his wife at home lived on a small Social Security check. A qualified income trust fixed his eligibility, and an income diversion shifted part of his monthly income to her instead of the facility. She went from panicking about the electric bill to a stable monthly budget.
The house, after both are gone. A couple qualified the husband for Medicaid with the standard spousal protections, then asked what would happen to the house once the wife also passed. We recorded a lady bird deed passing the home directly to their daughters. Estate recovery could not proceed while the wife lived, and after her death the home passed outside probate, beyond recovery’s reach.
Sources of Law
- 42 U.S.C. §1396r-5 (the spousal-impoverishment protections: community spouse resource allowance, income rules, minimum monthly maintenance needs allowance; subsection (c)(3) is the basis for spousal refusal). law.cornell.edu (retrieved 2026-06-10)
- 42 U.S.C. §1396p(b)(2) (estate recovery only after the death of any surviving spouse); §1396p(c)(2)(A)(i), (c)(2)(B)(i) (transfers of the home and other assets to a spouse exempt from the transfer penalty); §1396p(c)(1)(F) (annuity safe harbor). law.cornell.edu (retrieved 2026-06-10)
- Fla. Stat. §409.9101 (Florida’s Medicaid estate-recovery program, limited to the probate estate). flsenate.gov (retrieved 2026-06-10)
- 2026 Florida ICP figures: applicant asset limit $2,000, income cap $2,982/month, community spouse resource allowance $162,660. Florida DCF/ESS Policy Manual and FAC 65A-1.712 to 1.713. (retrieved 2026-06-10)
Updated on June 10, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice, and no attorney-client relationship is created. Eligibility figures change periodically and outcomes depend on your facts; past results do not guarantee a similar outcome. Advertised fees are honored for 90 days from the date above; government costs are additional and passed through at cost. Do not send confidential information until we have agreed to represent you.