Over the years, as an elder law attorney, I have heard clients say that they do not want to apply
for medical benefits (Medicaid) that they are entitled to for fear of the state at some point seeking
recovery. While I understand this fear, in most cases it doesn’t make sense. This is especially true when
you are discussing married couples and eligibility. In most cases, in dealing with married couples, while
the state may have a “claim” they have no right to “recover” against the estate of the couple when there
is a community spouse (healthy spouse).
Federal law requires that the State of Connecticut attempt to recover the long-term care benefits
from a Medicaid recipient’s estate after the recipient’s death. If steps aren’t taken to protect the Medicaid
recipient’s house, it may need to be sold to settle the claim.
For Medicaid recipients age 55 and older, states must seek recovery of payments from the
individual’s estate for nursing facility services, home and community-based services and related hospital
and prescription drug services.
There are a few exceptions. The state cannot recover from the estate of a Medicaid recipient
who has a surviving spouse until after the spouse passes away. After the spouse dies, the state may file
a claim against the spouse’s estate to recover money spent for the Medicaid recipient’s care. The State
also cannot recover from the estate if the Medicaid recipient had a child who is under age 21 or a child
who is blind or disabled.
While states must attempt to recover funds from the Medicaid recipient’s probate estate,
meaning property that is held in the beneficiary’s name only, they have the option of seeking recovery
against property in which the recipient had an interest, but passes outside of probate. This is called,
“expanded” estate recovery.
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 his or her life unless
certain dependent relatives are living in the property. 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.
An experienced elder law attorney can provide assistance to individuals and families in protecting
their home and assets from Medicaid estate recovery rules. A properly crafted Medicaid plan protects
assets during life and after death. There are numerous legal and ethical strategies that families can use
to ensure that assets do not count as being Medicaid recoverable.