Posted by: BlogMaster | March 6, 2012

Waiver of Estate Recovery by Medicaid

The expanded Medicaid recovery laws are complex.

The estate claim may be waived only if recovery against the Medicaid recipient’s interest – or the spouse’s interest – in the asset or property would result in undue hardship for the heir, and the heirs or surviving owners are not ‘free’ to dispose of property received by them because they may be beneficiaries or joint owners, or remainders on a life estate.

 Several questions need to be answered:

  • What is ‘undue hardship’ and what must be proven to Medicaid?
  • Is the asset, such as a family farm or business, the sole income-producing asset of the heirs or survivors of the Medicaid recipient?
  • Is the value of the home no higher than 50% of the average selling price in the NY State county where the home is located (using the date of death of the Medicaid recipient for valuation of the home) and is the home the primary residence of the heirs or survivors?
  • Are there other compelling circumstances – such as loss of employment or disabling illness (with reduced income) of the heirs or survivors of the deceased Medicaid recipient?

Take the time to review your own elder law and estate plan. If you cannot afford or do not qualify for long term care insurance to pay for your future care, consider whether the title of assets and real property may qualify you for Medicaid in the future – but also if it will be subject to recovery after your own and your spouse’s death. 

My office is glad to discuss this complex aspect of planning with you.

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