Does Medicaid look at the date a deed is signed or the recording date regarding the 5 year “look back” period?

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Does Medicaid look at the date a deed is signed or the recording date regarding the 5 year “look back” period?

We set up an irrevocable trust 5 years ago; mom continued to live in the house until we sold it 2 1/2 years later.

Asked on June 19, 2012 under Estate Planning, New Jersey

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

It is my understanding that the look-back periods are different in length, and in severity of penalty, depending on when the gift or transfer was made:
• For gifts or transfers she made before February 8, 2006, the look-back period is 36 months from the date your mother applies for Medicaid nursing home coverage. If her gift or transfer falls within this time, her period of ineligibility begins to run from the date of the transfer.
• For gifts or transfers your mother made on or after February 8, 2006, the rules are much tougher. The look-back period for transfers made after this date is 60 months from the date of your mother's Medicaid application. And if a less-than-full-value transfer falls within this time, the period of ineligibility begins from the date of your mother's application for Medicaid coverage (NOT from the date of the transfer, as under the earlier rule).

However, the Spreme Court in New Jersey has rules as follows in H.K v The State of New Jersey::

"....the transfer of the property occurred on the date on which H.K. executed the deed and the property was conveyed to her children and accepted by them. A deed, the court holds, does not need to be recorded in order to pass title. Instead, the court is satisfied to rely on “a simple credibility call made by an ALJ against the backdrop of well-established common law principles of real estate conveyance.”

Good luck.


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