Can a Postnup Help With Medicaid Planning in Florida?

The advice you will find on most sites is right in general and wrong in the situation that actually brings people to me. A postnup is a strong estate planning document, and a married couple facing nursing-home care has a real use for one. The use is narrower than the marketing suggests, and the timing is what decides whether the agreement does anything at all.

Does a Postnup Change What Medicaid Counts?

Clients are often confused about what the agreement does to the asset count, and ask me, “If we sign a postnup putting the savings in my name, will Medicaid leave them out?” A postnup does not change the count. When one spouse applies for nursing-home Medicaid in Florida, the state adds up every countable asset either spouse owns, in either name or together, on the date of the application. Federal law tells the state to do that regardless of any state law on dividing marital property. Florida’s own Medicaid manual goes further and addresses the agreement directly. Assets covered by a prenuptial agreement are part of the couple’s total for nursing-home Medicaid, and the manual says that policy applies no matter when the agreement was signed. A postnup is the same kind of contract signed after the wedding, and nothing in the federal or Florida rules gives it better treatment.

The numbers that come out of that count are fixed. In 2026 the spouse at home (the law calls that spouse the community spouse) keeps up to $162,660 in countable assets, and the spouse applying keeps $2,000, so a married couple is tested against $164,660. The home, one car, household goods and a prepaid funeral sit outside the count entirely. Income works on its own track. The healthy spouse’s Social Security, pension and paycheck are never counted, and the applicant’s income is tested against a cap of $2,982 a month, with a qualified income trust for anything over it.

A postnup that declares the savings to be the healthy spouse’s separate property moves none of those numbers. A couple holding $300,000 in countable assets is $135,340 over the limit with a postnup and $135,340 over without one.

Are Transfers Between Spouses Penalty-Free?

Transfers between spouses are penalty-free. Federal law exempts transfers to a spouse from the transfer penalty in any amount, and Florida’s manual lists transfers between spouses among the transfers that carry no penalty. Retitling an account or deeding property from one spouse to the other does not start the five-year look-back.

The exemption has one limit, and a Florida appellate court has enforced it. Moving assets to the spouse at home does not lower the count, because the couple’s total is still measured on the application date whichever spouse holds the money. The Florida case on that point is retold on the community spouse page.

The timing that matters for a postnup comes after approval. Florida’s manual expects the savings attributed to the spouse at home to be moved into that spouse’s name before the next eligibility review. From the month of approval forward, federal law says none of the community spouse’s assets are counted against the spouse in care, and the manual says the healthy spouse’s later transfers do not affect eligibility. From that point the healthy spouse’s property is genuinely separate for Medicaid purposes, and a postnup can make it separate for estate purposes too.

Practice pointer. Couples sign a postnup the week of the application and expect it to change the count. Sign the postnup with the move of the community spouse’s share, after approval, or years before anyone needs care, and never as a substitute for the planning the count requires.

What Happens if the Healthy Spouse Dies First?

Families plan for the spouse in care to die first, and the plan fails when the healthy spouse dies first. The healthy spouse is often the one carrying the stress, the driving and the caregiving, and the order of deaths is not predictable.

Florida gives a surviving spouse the right to claim 30 percent of the elective estate (the elective share), which reaches the probate estate, a living trust, joint and payable-on-death accounts and more, no matter what the will says. A surviving spouse also takes homestead rights and, where there is no will, a share under the rules for dying without one. Where the survivor is the spouse on Medicaid, any of those rights is an inheritance, and Florida’s Medicaid manual counts an inheritance once it becomes available. Against a $2,000 asset limit, one inheritance ends eligibility. The money then goes to the nursing home until it is spent down, and whatever is left in the ill spouse’s name at death is exposed to Florida’s estate recovery claim.

The elective share does not wait for the ill spouse to ask. Florida lets an agent under a power of attorney or a guardian make the election with court approval, after the court finds the election is good for the surviving spouse over that spouse’s probable lifetime, and the deadline is 6 months after service of the notice of administration or 2 years after the death, whichever comes first. A spouse who never signed a waiver keeps the right, and so does whoever acts for that spouse.

How a Postnup Waives the Elective Share

Florida lets a spouse waive the elective share, the intestate share, homestead rights, exempt property and the family allowance, in whole or in part, before or after the wedding. A waiver signed after the wedding has to meet three requirements under Florida law.

1. The waiver is in writing and signed by the spouse giving up the rights.
2. The waiver is signed in the presence of two subscribing witnesses.
3. Each spouse makes a fair disclosure of their estate to the other before signing.

No payment or other consideration is required beyond signing the agreement itself. A waiver of “all rights” in the other spouse’s estate covers the full list unless the agreement says otherwise, so a Medicaid postnup names each right it waives and the ones it keeps. Florida also holds a postnup to a higher standard than a prenup, because spouses owe each other a duty of fairness, which is why the disclosure and independent counsel for each spouse matter. The full requirements are on the Florida postnuptial agreement page, and the claim itself is on the Florida elective share page.

The waiver has to be signed by the spouse who gives up the rights, which means the spouse who may need care has to have the capacity to sign. Florida’s power of attorney statute lists the powers an agent may use only when the document spells them out, and a waiver of spousal rights is not on that list. I have not found a Florida appellate decision allowing an agent to sign one. The time to sign is while both spouses can.

A Supplemental Needs Trust in the Healthy Spouse’s Will

Many healthy spouses want to provide for the spouse in care, not disinherit them. A supplemental needs trust (a trust that pays for things Medicaid does not, at the trustee’s discretion, without counting as the beneficiary’s money) is how a will does that.

Federal Medicaid law treats a trust that a spouse creates during life with the couple’s money as if the applicant had created it, and the definitions count a spouse’s assets as the applicant’s own. The rule expressly excludes a trust created by will. Florida’s Medicaid manual follows that line, saying its rules for self-created trusts do not cover trusts established by will, and that the rules for trusts set up by someone else apply to a trust created by will regardless of the relationship of the person who died. Under those rules, a trust the beneficiary cannot revoke or direct is not counted, payments the trustee makes directly to a facility or a vendor are not income, and cash handed to the beneficiary is income.

Florida’s elective share law recognizes the same tool. A qualifying special needs trust for an ill or disabled surviving spouse is applied first against the 30 percent share and credited at its full value, so a will that funds one satisfies the elective share even for a spouse who never signed a waiver. The trust needs court approval when the total held for the spouse is $100,000 or more, and fewer than half of its trustees may be relatives of the person who died who are not also descendants of the surviving spouse (in a second marriage, that keeps stepchildren from holding the majority).

Practice pointer. The exception covers a trust created by will. A revocable living trust that becomes irrevocable at death was created during life, so I write the spouse’s supplemental needs trust into the will itself and coordinate the living trust and beneficiary designations around it. More on these trusts is on the Florida special needs trust page.

Estate Recovery After the Ill Spouse Dies

Medicaid creates a debt to Florida for care paid after the recipient turns 55. After the recipient dies, the state collects that debt by filing a claim in the recipient’s probate estate. The claim cannot be enforced while the recipient is survived by a spouse, a child under 21, or a blind or disabled child, and the state cannot reach property that is exempt from creditors, such as protected homestead.

The postnup matters here because of what sits in whose name. Where the healthy spouse dies first and the ill spouse inherits outright, the inheritance spent on care is gone and whatever remains is in the ill spouse’s probate estate when that spouse dies. Where the postnup waived the elective share and the will left the ill spouse’s share in a supplemental needs trust, nothing passed into the ill spouse’s name, and the trust document directs what is left to the children. The Florida Medicaid estate recovery page has the full rules, and a lady bird deed keeps the home out of probate in the same plan.

Is Waiving the Elective Share a Transfer for Medicaid?

Florida has not answered this question for the elective share, and the honest answer is that it is a question for the consult. Federal Medicaid law defines a person’s assets to include anything the person or the spouse was entitled to but did not receive because of their own action. New Jersey’s rule uses that language and names the elective share as an example, and in one New Jersey case the agency moved to end the Medicaid of a husband who had not claimed a share of his wife’s estate. I read Florida’s transfer chapter for the same language and found none naming the elective share, and I have not found a Florida appellate decision on it.

Timing carries the risk. A waiver signed in a postnup five years or more before an application sits outside the look-back on any reading. A mutual waiver signed while both spouses are well gives up a right that did not yet exist, in exchange for the same waiver from the other spouse, and that exchange is the argument I would make that it was never a gift. A refusal to claim the share after the healthy spouse has died, by a spouse already on Medicaid, is the version most likely to be treated as a transfer.

Avoid waiting for a diagnosis to sign. A postnup signed in the month of a nursing-home admission changes nothing in the count and is the hardest waiver to defend.

What a Medicaid Postnup Costs

A postnup drafted for one spouse is a flat fee from $2,950, and the other spouse needs independent counsel. Special needs provisions written into a will start at from $4,000. Medicaid planning for a married couple already facing care is a flat fee quoted at consult, because the scope moves with the couple’s numbers, and a qualified income trust is $750 where income is over the cap. The full Medicaid fee list is on the Medicaid planning page. Advertised fees are honored for 90 days from the date posted, and government costs such as recording are passed through at cost.

Book the No-Cost Phone Consult and bring the account statements for both spouses. We will run them against $164,660, tell you whether a postnup earns its fee in your situation, and write down what each piece costs before you sign anything.

Frequently Asked Questions

Common Situations

The second marriage, both still well. A couple in their seventies, each with children from a first marriage, wants each estate to go to that spouse’s own children. A postnup with mutual waivers of the elective share and homestead rights, signed with full disclosure and two witnesses, and wills that leave each spouse a supplemental needs trust funded at a set amount rather than an outright share, handle both the family plan and the risk that either spouse later needs care.

The diagnosis that arrives first. A husband is diagnosed with early dementia while he can still understand and sign. The couple signs a postnup and new wills the same season. When he enters care three years later, the count runs as it always does and the community spouse keeps $162,660, while the waiver and the trust in her will are already in place if she dies first.

The wife who dies first. A wife caring for her husband at home has a will leaving everything to him. The wife dies, and the husband inherits a house and $210,000. With no waiver and no trust, the inheritance ends his Medicaid until it is spent, and Florida’s claim waits in his probate estate. The same family with a postnup and a supplemental needs trust in her will would have kept his coverage and passed what was left to their children.

Sources of Law

• 42 U.S.C. §1396r-5(c)(2) (at application, all resources held by either spouse are considered available to the institutionalized spouse above the community spouse resource allowance, "regardless of any State laws relating to community property or the division of marital property"); §1396r-5(c)(4) (after the month of eligibility, no resources of the community spouse deemed available); §1396r-5(b)(1) (community spouse income not deemed available). (retrieved 2026-10-06)
• 42 U.S.C. §1396p(c)(2)(B)(i) (transfers to a spouse exempt from the transfer penalty); §1396p(d)(2)(A) (trust treated as established by the individual when established by the individual or spouse "other than by will"); §1396p(h)(1) (assets include the spouse’s income and resources, and income or resources the individual or spouse "is entitled to but does not receive" because of their own action). (retrieved 2026-10-06)
• Florida DCF ESS Policy Manual, ch. 1600 (Assets). 1640.0314.02 (Prenuptial Agreements) provides that "Assets that are included in a prenuptial agreement are considered part of the couple's total assets when determining eligibility for institutional care services. This policy applies regardless of when the prenuptial agreement was drawn up." 1640.0314.01 (assets of both spouses considered at application; institutions on or after September 30, 1989); 1640.0609 item 9 (interspousal transfers made on or after October 1, 1989 are not penalized); 1640.0610 (assets attributed to the community spouse moved before the next redetermination); 1640.0611 (transfers between spouses do not affect eligibility; community spouse transfers after approval); 1640.0576.01, 1640.0576.03 and 1640.0576.07 (trusts established by will evaluated under the third-party rules "regardless of the relationship of the now deceased grantor to the individual"). Ch. 1800, 1840.0109.04 (inheritance). (manual edition retrieved 2026-05-27)
• Fla. Admin. Code R. 65A-1.712(4)(a) to (c) (couple’s resources counted at application; community spouse resource allowance equal to the federal maximum or any court-ordered support, whichever is larger).
• 2026 Florida ICP figures, kept identical to the eligibility calculator. Income cap $2,982 a month; applicant asset limit $2,000, or $3,000 where both spouses apply; community spouse resource allowance $162,660; married threshold $164,660; minimum monthly maintenance needs allowance maximum $4,067. Figures change each January.
• Fla. Stat. §732.702 (waiver of spousal rights before or after marriage; two subscribing witnesses; fair disclosure for a waiver executed after marriage; no other consideration required). §732.201 and §732.2065 (elective share of 30 percent of the elective estate); §732.2025(8) (qualifying special needs trust for an ill or disabled surviving spouse; court approval unless the aggregate is under $100,000; trustee composition); §732.2075(1)(e) and §732.2095(2)(e) (qualifying special needs trust applied first and valued at the full value of its principal); §732.2125(2) (election by an attorney in fact or guardian only with court approval, on a finding about the spouse’s interests during the spouse’s probable lifetime); §732.2135 (time of election). (retrieved 2026-10-06)
• Fla. Stat. §709.2202 (powers an agent may exercise only when separately initialed; a waiver of spousal rights is not among them).
• Fla. Stat. §409.9101(3), (6) and (7) (Medicaid estate recovery claim for assistance paid after age 55, filed in the probate estate; not enforced while a spouse, a child under 21 or a blind or disabled child survives; no recovery from property exempt from creditors). (retrieved 2026-10-06)
• Out-of-state comparison, persuasive only. N.J. Admin. Code 10:71-4.10(b)(3)(ii) (waiving the spousal elective share listed as an action causing resources not to be received), recited in In re Estate of Brown, 448 N.J. Super. 252 (App. Div. 2017). No Florida appellate decision on whether waiving or failing to claim the elective share is a transfer for Medicaid was found in a search of the Florida and Eleventh Circuit opinions (searched 2026-10-06).
• Case retold below. Gulick v. Department of Health & Rehabilitative Services, 615 So. 2d 192 (Fla. 1st DCA 1993), rehearing denied April 6, 1993 (trust created by the community spouse during life, ending the institutionalized spouse’s interest on admission, counted as a Medicaid qualifying trust under former 42 U.S.C. §1396a(k); applies §1396r-5(c)(2)). The Medicaid qualifying trust provision was replaced by 42 U.S.C. §1396p(d) for trusts established after August 10, 1993. Read in full from the opinion text (retrieved 2026-10-06).

What a Florida Case Shows About Separating Spouses’ Money Before Care

What I have not seen a form do is change what Medicaid counts, and a Florida case from 1993 shows why. In June 1988 a husband created an irrevocable trust for himself and his wife and named their son as trustee. While both spouses lived at home, the son could pay them income and principal to keep up their standard of living. The trust had one unusual clause. The day either spouse entered a nursing home, that spouse’s interest ended for good, and the payments continued to the spouse still at home (the idea being that the money would then belong to the healthy spouse alone and could not be counted for the one in care).

In September 1989 the wife, then 82, entered a nursing home and applied for Medicaid. The clause worked exactly as written, and her interest in the trust ended. The state counted the trust principal anyway and denied the application in July 1991, because nearly all of the assets attributed to her sat in that trust. The First District Court of Appeal affirmed in March 1993, and rehearing was denied in April, three and a half years after she entered the nursing home. The court’s reasoning was that the husband had created the trust during his life, the son could still pay the husband at his discretion, and federal law counts what either spouse holds toward the eligibility of the spouse in care, regardless of any state law on dividing marital property.

In reading that decision against the rules Florida applies today, I have a few take-home points.

The first is the count. The couple wrote a careful document that split their money the moment one of them needed care, which is the same idea a postnup labeling the savings as one spouse’s separate property is built on. Medicaid looked past it to what each spouse could reach. Practice pointer. Before I draft a postnup for a couple where one spouse may need care, I run both spouses’ statements against $164,660 and the $2,982 income cap, because those two numbers set the planning job and the agreement does not change them.

Second, the husband picked the right goal and the wrong document. Providing for the healthy spouse while keeping the money away from the spouse in care is exactly what a supplemental needs trust in the healthy spouse’s will does, and federal and Florida rules treat a trust created by will differently from one created during life. Practice pointer. Where the goal is to protect money for the family after the healthy spouse dies, I put the trust in the will and the elective share waiver in the postnup, and I do not build a lifetime trust that names either spouse as a beneficiary.

Third, the clause that was meant to protect them is what cost them. The couple’s plan depended on a document signed during life, by a spouse, with the spouses as beneficiaries, and every one of those facts pointed the count back at them. Avoid any lifetime document, whether a trust or a postnup, whose job is to cut off the ill spouse at admission, because Florida counted that couple’s trust as theirs and gave the clause no weight.

Two limits apply to what that case can tell you. The court decided it under the older Medicaid trust rules, which Congress replaced in 1993 with the rules in force today. The current rules reach the same kind of trust, because a trust a spouse creates during life, other than by will, is still treated as the applicant’s own, and any part of it that could be paid out for the applicant is counted. I have not found a Florida appellate decision on a postnup and Medicaid, so the rule on this page comes from the federal statute and Florida’s Medicaid manual rather than from a case.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Updated on October 6, 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. Each spouse should have independent counsel for a postnup. Eligibility figures change each January and outcomes depend on your facts; past results do not guarantee a similar outcome. Advertised fees are honored for 90 days from the date posted; government costs are additional and passed through at cost. Do not send confidential information until we have agreed to represent you.