123.259 - Division of income and resources of husband and wife: Manner; conditions; restrictions. - Nevada Statutes

123.259  Division of income and resources of husband and wife: Manner; conditions; restrictions.

      1.  Except as otherwise provided in subsection 2, a court of competent jurisdiction may, upon a proper petition filed by a spouse or the guardian of a spouse, enter a decree dividing the income and resources of a husband and wife pursuant to this section if one spouse is an institutionalized spouse and the other spouse is a community spouse.

      2.  The court shall not enter such a decree if the division is contrary to a premarital agreement between the spouses which is enforceable pursuant to chapter 123A of NRS.

      3.  Unless modified pursuant to subsection 4 or 5, the court may divide the income and resources:

      (a) Equally between the spouses; or

      (b) By protecting income for the community spouse through application of the maximum federal minimum monthly maintenance needs allowance set forth in 42 U.S.C. § 1396r-5(d)(3)(C) and by permitting a transfer of resources to the community spouse an amount which does not exceed the amount set forth in 42 U.S.C. § 1396r-5(f)(2)(A)(ii).

      4.  If either spouse establishes that the community spouse needs income greater than that otherwise provided under paragraph (b) of subsection 3, upon finding exceptional circumstances resulting in significant financial duress and setting forth in writing the reasons for that finding, the court may enter an order for support against the institutionalized spouse for the support of the community spouse in an amount adequate to provide such additional income as is necessary.

      5.  If either spouse establishes that a transfer of resources to the community spouse pursuant to paragraph (b) of subsection 3, in relation to the amount of income generated by such a transfer, is inadequate to raise the income of the community spouse to the amount allowed under paragraph (b) of subsection 3 or an order for support issued pursuant to subsection 4, the court may substitute an amount of resources adequate to provide income to fund the amount so allowed or to fund the order for support.

      6.  A copy of a petition for relief under subsection 4 or 5 and any court order issued pursuant to such a petition must be served on the Administrator of the Division of Welfare and Supportive Services of the Department of Health and Human Services when any application for medical assistance is made by or on behalf of an institutionalized spouse. The Administrator may intervene no later than 45 days after receipt by the Division of Welfare and Supportive Services of the Department of Health and Human Services of an application for medical assistance and a copy of the petition and any order entered pursuant to subsection 4 or 5, and may move to modify the order.

      7.  A person may enter into a written agreement with his or her spouse dividing their community income, assets and obligations into equal shares of separate income, assets and obligations of the spouses. Such an agreement is effective only if one spouse is an institutionalized spouse and the other spouse is a community spouse or a division of the income or resources would allow one spouse to qualify for services under NRS 427A.250 to 427A.280, inclusive.

      8.  An agreement entered into or decree entered pursuant to this section may not be binding on the Division of Welfare and Supportive Services of the Department of Health and Human Services in making determinations under the State Plan for Medicaid.

      9.  As used in this section, “community spouse” and “institutionalized spouse” have the meanings respectively ascribed to them in 42 U.S.C. § 1396r-5(h).

      (Added to NRS by 1987, 1016; A 1989, 380, 1005; 1993, 2412; 1997, 1248; 2009, 1257)