Page 242

This includes situations in which the will of the institutionalized person's spouse precludes any inheritance for the institutionalized person. Under Wisconsin law, a person is entitled to a portion of their spouse's estate. If the institutionalized person does not contest their spouse's will in this situation, the inaction is an unallowable divestment and results in a penalty period if both: • The value of the abandoned portion is clearly identified. • There is certainty that a legal claim action will be successful as determined by the IM agency’s Corporation Counsel. The IM agency may not consider the actions taken to avoid income or assets a divestment without this determination from the agency’s Corporation Counsel. 17.2.7.4 Avoiding Receipt The action of avoiding the receipt of income or assets a member is entitled to is an unallowable divestment and results in a penalty period. This type of divestment includes: • Irrevocably waiving pension income. • Disclaiming an inheritance. • Not accepting or accessing injury settlements. • Diverting tort settlements into a trust or similar device. • Refusing to take legal action to obtain a court-ordered payment that is due to the institutionalized person, such as child support or alimony. It is not divestment if the applicant or member fails to apply for cash benefits that they may be eligible for, such as Social Security or veterans' benefits. 17.2.7.5 Payments for Services Provided by the Relative The transfer of income or assets to a relative as payment for care or services provided to the institutionalized person is an unallowable divestment and results in a penalty period unless it meets the criteria to be an allowed divestment per 17.2.6.10 CERTAIN PAYMENTS TO RELATIVES FOR SERVICES PROVIDED. Example 14 Jennifer enters a nursing home on December 12 and applies for Medicaid. She reports she paid her daughter $7,000 in December for making dinner every night for two months.

The IM agency checks with a local meal service that reports reasonable compensation for each meal provided is $2.

$7,000 is less than 10% of the maximum Community Spouse asset share at the time, so Jennifer is not required to provide a notarized agreement. Jennifer's daughter provided 61 meals. Reasonable compensation for these meals was $122. Jennifer’s payment to her daughter is an unallowable divestment and results in a penalty period. The divested amount for this payment is $6,878 ($7,000-$122). 17.2.7.6 Room and Board The payment of room and board by an institutionalized person to a relative after the person has been institutionalized is an unallowable divestment and results in a penalty period unless it meets the criteria for an exception per 17.2.3.4 PAYMENTS TO A RELATIVE WHILE THE INSTITUTIONALIZED PERSON RECEIVED ROOM AND BOARD.