Page:United States Statutes at Large Volume 102 Part 1.djvu/793

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PUBLIC LAW 100-360—JULY 1, 1988

102 STAT. 755

institutionalized spouse has been determined to be eligible for medical assistance, except as otherwise provided in this section and regardless of any State laws relating to community property or the division of marital property, the following rules apply: "(A) NON-TRUST PROPERTY.—Subject to subparagraphs (C) and (D), in the case of income not from a trust, unless the instrument providing the income otherwise specifically provides— "(i) if payment of income is made solely in the name of the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse; "(ii) if payment of income is made in the names of the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and "(iii) if payment of income is made in the names of the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse's interest (or, if payment is made with respect to both spouses and no such interest is speciAed, one-half of the joint interest shall be considered available to each spouse). "(B) TRUST PROPERTY.—In the case of a trust— "(i) except as provided in clause (ii), income shall be attributed in accordance with the provisions of this title (including sections 1902(a)(17) and 1902(k)), and "(ii) income shall be considered available to each spouse as provided in the trust, or, in the absence of a specific provision in the trust— "(I) if payment of income is made solely to the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse; "(II) if payment of income is made to both the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and "(in) if payment of income is made to the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse's interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse). "(C) PROPERTY WITH NO INSTRUMENT.—In the case of income not from a trust in which there is no instrument establishing ownership, subject to subparagraph (D), onehalf of the income shall be considered to be available to the institutionalized spouse and one-half to the community spouse. "(D) REBUTTING OWNERSHIP.—The rules of subpar£^aphs

(A) and (C) are superseded to the extent that an institutionalized spouse can establish, by a preponderance of the

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