We have helped many clients get their spouse or parent on Medicaid to help pay for nursing home care.  One frequent question has been “Can Medicaid take my parent’s (or spouse’s) house when she passes away?”  This authority of this to reclaim money it paid for care is known as the “estate recovery” claim, and this question was answered in a good way in 2015.
Federal law requires that each state agency seek to recover reimbursement from the estate of each deceased Medicaid recipient for nursing home or home-and-community-based waiver services paid by Medicaid after the recipient was 55 years of age.  This claim will be waived by Medicaid (a) if there is a surviving spouse; or (b) if there is a surviving dependent who is under the age of twenty-one (21) years or who is blind or disabled; or (c) as provided by federal law and regulation, if it is determined by Medicaid or by court order that there is undue hardship.
A 2011 state court case also held that it has no claim against the Medicaid recipient’s residence (homestead) property at death IF the resident is survived by a spouse, child or grandchild who would take the residence as an inheritance.  Estate of Darby v. Stinson, 68 So.3d 702 (Miss. App. 2011)  The Medicaid application was revised in 2013 in response to this case, arguably to allow the application to be a waiver of the homestead protection and permit this to recover from estates of recipients under the new application.  This uncertainty gave rise to a request in 2015 from a state Representative for an opinion from the Attorney General as to Medicaid’s right of estate recovery against such homestead property at the death of the owner/Medicaid recipient.
Attorney General Opinion No. 2015-314 contained extensive research on this issue and concluded, in part:  “In response, property exempt under Section 85-3-21 of the Mississippi Code [homestead exemption] is not part of the estate.  Darby v. Stinson, 68 So. 3d 702 (Miss. 2011).  Further, I find no authority for the Division of Medicaid to seek recovery from property other than the recipient’s estate by requiring a waiver of homestead exemption.”  Therefore, the Mississippi courts and the state Attorney General have found that this cannot make a claim for reimbursement against the nursing home resident’s homestead property at death, and that property will descend by law to the  recipient’s surviving spouse, children or grandchildren free of such claim.
For more questions and concerns on this case, we have the experienced lawyers at Courtney Elder Law to assist you. Contact us today by calling 601-987-3000.