What assets can Madicaid reach back and take?

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What assets can Madicaid reach back and take?

My boyfriend of 11 years has terminal cancer. He has Willed everything to me, but just before he became ill, he lost his job and health insurance and has had to use Medicaid for some of his medical bills. Will the state take our home away from me to repay his Medicaid benefits. Even if we get married now, will they still do estate recovery?

Asked on December 11, 2012 under Estate Planning, Kentucky

Answers:

Victor Waid / Law Office of Victor Waid

Answered 9 years ago | Contributor

Medical will do estate recovery. I suggest you go to the dept website to determine the rules as they apply to you. Since you are not married, you have no rights except to those items your are titled with. Medical has five years to to look back five years before death regarding any transfers of property. Google has a lot resources for you to review.

Catherine Blackburn / Blackburn Law Firm

Answered 9 years ago | Contributor

This is actually a complicated question.  Most Medicaid reimbursement policies are controlled by federal law but state law has some influence.  I don't know what state you and your boyfriend live in, so I cannot speak to your state's law.

Under federal law, 42 U.S.C. section 1396p, the state is limited in what Medicaid payments it can recover from your boyfriend's estate.  In general, it cannot recover payments unless your boyfriend was in a nursing home (it does not sound like this applies) or he was over 55 years old when he received the benefits.  Some states only pursue estate recovery for the amounts paid for nursing home care.  In addition, the state cannot take the house if a spouse is lawfully residing there.

I don't know if your boyfriend meets any of these criteria.  However, if the two of you wish to be married, it may be a good idea to get married and place the deed to the home in your joint names.  Change the deed after you are married so that you hold title as tenants by the entireties.

The 5 year look back period is important when you are applying for benefits.  It is not important for estate recovery.  Also, transfers to spouses are exempt from the 5 year look back.

I hope this helps.  You may wish to consult an elder law attorney in your state to make sure you are taking all the steps you can appropriately take.

 


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