The law known as OBRA ’93 mandates that the state must seek recovery from a Medicaid recipient’s estate or upon the sale of property subject to a lien imposed on account of Medicaid expenses paid on behalf of the Medicaid recipient.
General Rule: No recovery during life of Medicaid recipient
No lien is created against property of Medicaid recipient until that person passes away. Except:
- If Medicaid incorrectly paid (i.e. person not entitled to those benefits) and receives a judgment by a court;
- If Medicaid recipient owns real property without “intent to return home.” (Unless Medicaid recipient’s spouse (community spouse) resides at home; Unless child who is under 21, or blind or disabled resides in the home; or Unless the Medicaid applicant has a sibling that has lived in home for one year and has an equity interest in the home.
Medicaid Recovery in Personal Injury Cases
In Florida personal injury cases, if Medicaid paid medical expenses related to the personal injury case, Medicaid can recover such amounts upon personal injury settlement or verdict from the medical recovery portion of the personal injury case (i.e. not from lost wages or pain and suffering portion of personal injury recovery). Medicaid need not wait for the Medicaid recipient to pass away to recover from the personal injury settlement or verdict proceeds.
What Assets / Property Can Medicaid Recover From After Medicaid Recipient Dies?
42 USC 1396p (b)(4): Medicaid can recovery from the “estate” of the Medicaid recipient, however the term “estate” is defined in the state’s probate laws. Estate is either defined as those assets/property that pass though probate or some expanded estate recovery definition. Luckily, in Florida, Medicaid is limited to recovering from probatable assets only.
Your Florida Medicaid lawyer can significantly reduce the assets Medicaid will be able to take from the estate. In fact, in pre-planning cases, Medicaid estate recovery can legally and ethically be completely avoided altogether!
If there is no probatable estate, there is no Medicaid estate recovery.
What happens if the community spouse dies first?
But even if the community spouse refuses to support the Medicaid-recipient (see article on spousal refusal medicaid florida), what happens if the community spouse dies first?
State law will not allow the community spouse to completely disinherit the sick spouse through the spouse’s of the deceased’s estate. Medicaid can assume the right the institutionalized spouse had to that elective share.
In this case, again, your elder care lawyer can explain options on how to prevent the surviving spouse from losing their medicaid benefits if the well spouse passes away first.
Call 305.931.0478 to schedule a Florida medicaid-planning consultation.
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