Happily Married or Something Else? Part 3

In this third post of 3, I continue the discussion about second marriages and Medicaid and more specifically how to handle a fraudulent marriage.  Last week I explained that if we make every effort to get the documentation from an ex-spouse for the Medicaid application process, regulations provide that the application can be approved.

In the case where the refusal to cooperate comes not from an ex-spouse but instead a current spouse, the State is not likely to accept that we have done everything we could.  Divorce is one option at this point but we still have to contend with the 5 year lookback and getting documents concerning the ex-spouse’s accounts.  This is also problematic if the ex-spouse took funds of the Medicaid spouse without authorization and, for example, sent to other family members.  These transfers would cause a Medicaid penalty.

If the marriage is fraudulent, however, a better option may be an annulment.  An annulment is different than a divorce although the outcome is the same.  The legal effect of an annulment is that the marriage never existed.  It never happened.  If one of the parties did not have the legal capacity to enter into the marriage, which could be the case where a caregiver marries an elderly client, then we can say that the marriage never existed because both parties did not have the capacity to enter into the marriage contract.  An annulment would then be a legal finding of that fact.

If the marriage never existed then we don’t need any account statements for the “spouse”, since there never was a spouse.  At the same time any amounts taken by that person without authorization can be addressed in the context of the annulment.   If necessary a complaint for theft can be filed which will support the argument to the State that there should not be a Medicaid penalty because there was no voluntary transfer.