Irrevocable trusts and the 60-month clock
On the asset side, an irrevocable Medicaid asset protection trust removes assets from the countable total — but only if it was funded more than 60 months before the Medicaid application, matching Florida's look-back period under 42 U.S.C. § 1396p(c) (Elder Needs Law). There is no shortcut around that five-year window; a trust funded four years before applying provides no protection at all.
DRA-compliant annuities for the community spouse
Florida sets out precise requirements for using an annuity in Medicaid planning without triggering a transfer penalty. Under Fla. Admin. Code R. 65A-1.712, an annuity purchased on or after November 1, 2007 must: name the State of Florida (AHCA) as primary beneficiary (or as secondary, behind a community spouse or minor/disabled child); be irrevocable and non-assignable; pay principal and interest in equal installments with no balloon or deferred payments; and be actuarially sound under the Social Security Administration's Period Life Table. If those conditions are met, the funds are excluded as a resource and only the periodic payments count as income.
Spousal refusal — permitted, with a real trade-off
Florida permits spousal refusal: federal law under 42 U.S.C. § 1396r-5 bars denying Medicaid to an otherwise eligible institutionalized spouse solely because the community spouse refuses to make assets available. The community spouse signs a formal written refusal, and the institutionalized spouse is then evaluated only on their own assets. The trade-off: Florida "retains the right to pursue the refusing community spouse for reimbursement" in a separate action, and while that right has "rarely" been exercised historically, it remains a live legal exposure that a couple's attorney should weigh before relying on this strategy (Elder Needs Law, Spousal Refusal).
None of this is do-it-yourself work. Miller Trusts, DRA-compliant annuities, and spousal refusal each have to satisfy exact Florida regulatory language to work as intended. A trust or annuity that misses one required clause can be treated as a disqualifying transfer instead of a protective one.
Finding a Florida elder law attorney
The Florida Bar's board certification in elder law requires five or more years of practice, substantial elder-law involvement in each of the prior three years, 60 hours of approved elder-law continuing education, peer review, and a written exam — certification lasts a maximum of five years before renewal (The Florida Bar, Elder Law Certification). The Academy of Florida Elder Law Attorneys (AFELA) maintains a public referral directory (AFELA, Find a Lawyer), and Florida's Department of Elder Affairs also points consumers to The Florida Bar Lawyer Referral Service at 1-800-342-8011.
Not mutually exclusive. Most families combine two or three funding pillars — this one rarely stands alone.
The
Journey Assessment ranks all ten pillars against your specific situation and
recommends the top three.
