Medicaid Estate Recovery and Medicaid Payback Rules

Federal law requires each state to attempt to recover long-term care benefits from Medicaid recipient’s estates after their death. This is known as Medicaid estate recovery.

If a Medicaid recipient had failed to protect their house, it may need to be sold to settle the claim.

Who Does the Medicaid Estate Recovery Program (MERP) Affect?

For Medicaid recipients ages 55 or older, states must seek recovery of payments from their estate for the following:

    nursing facility services;

    home and community-based services;

    and related hospital and prescription drug services.

States may also recover costs for any medical care covered by Medicaid, not just the cost of long-term care.

Medicaid Estate Recovery Exemptions

There are a few exceptions regarding when the state can recover through MERP. These include the following:

•     If the Medicaid recipient has a surviving spouse, the state cannot recover from the estate until after that spouse passes away. After the spouse dies, the state may seek to recover from the estate any money spent for the Medicaid recipient’s care.
•     The state cannot recover from the estate if the Medicaid recipient has a surviving child who is under age 21.
•     The state also cannot recover from the estate if the recipient has a surviving child who is blind or disabled.

States must attempt to recover funds from the Medicaid recipient’s probate estate (property held in the recipient’s name only). Securing Medicaid benefits requires that the recipient have extremely limited assets. So, the only probate property of substantial value that a Medicaid recipient is likely to own at death is their home.

Expanded Estate Recovery

Note that some states also opt to seek recovery against property in which the Medicaid recipient had an interest but that passes outside of probate. This is called “expanded” estate recovery and may include jointly held assets, assets in a living trust, or life estates.

Maryland does not use expanded estate recovery and cannot make a claim against a Medicaid recipient’s home if it is not in their probate estate.)

In addition to the right to recover from the estate of the Medicaid beneficiary, state Medicaid agencies may place a lien on real estate owned by a Medicaid beneficiary during their lifetime (unless certain dependent relatives are living in the property).

What Is a Lien?

If Medicaid places a lien on your home, it means that Medicaid has a legal claim to that piece of property. In other words, the state Medicaid agency has the right to use your home as collateral if the estate is unable to pay the costs of the Medicaid recipient’s care.

The state cannot impose a lien if a spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house is living there.

If a lien is placed on the Medicaid recipient’s property and it is sold while the recipient is alive, they may no longer qualify for Medicaid. This would be the case if, for example, the proceeds from the home’s sale exceeded the Medicaid asset limits in the recipient’s state.

The beneficiary also would have to satisfy the lien by paying back the state for its coverage of care to date. In some states, the lien may be removed upon the beneficiary’s death. In others, the state can collect on the lien after the Medicaid recipient dies. Check with your attorney to see how your local agency handles this.

How to Avoid Medicaid Estate Recovery

There are some circumstances under which the value of a house can be protected from Medicaid recovery:

• When the house is in the spouse’s name and the Medicaid recipient had relinquished their interest
• If the house is in an irrevocable trust
• When some children or relatives of the Medicaid recipient qualify for an undue hardship waiver

For example, if a Medicaid recipient’s daughter took care of him before he entered the nursing home, and she has no other permanent residence, she may be able to avoid a claim against his house after he dies.

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David Wingate is an estate planning and elder law attorney at Estate and Elder Planning by David Wingate. The Estate and Elder Planning office services clients with powers of attorneys, living wills, Wills, Trusts, Medicaid and asset protection. The Elder Law office has locations in Frederick, Washington and Montgomery Counties, Maryland.

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