jd6122 Asked February 8, 2024
After a spouse dies, how long is it before Medicaid claims the house from surviving spouse?
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Right now they allow me to live in the house as long as he is alive.
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Each state is different. Check with an elder lawyer specialist.
"Can Medicaid Put a Lien on the Home?
Yes, Medicaid can put a lien on a Medicaid recipient’s home, but not all states do. A lien is a way to guarantee payment of a debt, or in this case, reimbursement of long-term care costs. Essentially, it does not allow one’s home to be sold without existing debt paid first. With the passing of the Tax Equity and Fiscal Responsibility Act (TEFRA) in 1982, states were given the option to use liens to prevent Medicaid beneficiaries from transferring their home to a loved one shortly before they die as a means to avoid Estate Recovery. Note that if a Medicaid recipient were to transfer their home, the transfer would be a violation of Medicaid’s Look-Back Rule, resulting in a Penalty Period of disqualification. The family would then have to pay out-of-pocket for long-term care costs during disqualification. However, a lien prevents the Medicaid recipient from transferring their home.
Generally, a lien is filed by the state when the Medicaid recipient is institutionalized and not expected to return home. If the individual does return home, the lien is removed. A lien is also removed if the home is sold and Medicaid is reimbursed. Selling the home while the recipient is still living, however, is not advised. It will most likely result in Medicaid disqualification for long-term care due to “excess” assets (being over Medicaid’s asset limit). Essentially, the home is exempt from Medicaid’s asset limit prior to sale, but if it is sold, it turns an exempt asset into a countable asset (cash). In some states, a lien may be removed following the death of the Medicaid recipient, while in other states, Medicaid will collect on the lien.
A lien cannot be put on a Medicaid recipient’s home if one of the following relatives lives in it:
• A spouse
• A child under 21 years old
• A disabled or blind child of any age
• A sibling who has an equity interest (ownership) in the home and has lived in it a minimum of one year immediately preceding the Medicaid recipient’s nursing home admittance
In addition to the pre-death lien discussed above, some states may put a lien on the home following a Medicaid recipient’s death. This is done when there is a survivor, such as a spouse, still occupying the home and the state intends to collect repayment following that individual’s death. The lien may be lifted if the survivor wishes to sell the home."
Source: https://www.medicaidplanningassistance.org/medicaid-estate-recovery-program/
For an elder who enters a facility yet who wants to keep their home, all property costs still exists. So homeowners insurance, property taxes, utilities, maintenance, etc all still exist. If a Community Spouse hopefully they themselves have their own income and assets to pay all these or know to file for Community Spouse Resource Allowance to capture some of the NH spouses income if need be to make ends meet. But if not, and if family does not pay property related bills, sadly what happens is property becomes neglected & annual property tax bill gets overlooked and unpaid. It goes on for a couple of years it’s OK, as nothing can happen for tax sale till it’s usually 3 sequential years of delinquency for outsiders to file for a redemption. But once that happens, ownership change, new title issued.
I would say since you do have a home, an asset to protect, you see an attorney after you receive any communication from Medicaid regarding recover of costs or liens. This will give you good baseline information and protection.
Good luck to you.
Also imo it will make a difference if your State does estate recovery by Medicaid staff in house or has an outside contractor for MERP.
My experience based on being on this site a long time is that even if the elder - solo or married - really wants to hang onto their old home, most families are so beyond over dealing with the house, that in short order, it gets sold within first 6-9 months, even if there would have been exemptions or exclusions to MERP. It gets sold and the well spouse - if there is one - moved into a family members home and the other off into a facility. The # of CS who actually remain in their home is pretty small & tends to be either a May/Dec marriage or a husband who stays in the home as it’s his wife who gets way early dementia (at least 3 of these menfolk on this site). And what seems to happen after death of the NH spouse, is State really isn’t going to take the time needed to do the follow through which could be years if not decades on CS property tracking if challenged.
So most of the time States do not attempt any recovery if the CS wants to sell the house, use all proceeds of the sale and buy another. The LTC Medicaid NH room&board custodial care debt of the now deceased spouse was not securitized debt; it was not a mortgage or a HELOC that was a contract that used the house as collateral for the debt. It was a debt of the deceased. So the State has no securitized interest on the property so cannot keep the CS from “free movement” to buy another home if the CS so chooses.
JD, if selling and getting something new is on your radar, you need to get probate and a real estate attorney to deal with this for you. It’s not really an elder law attorney issue anyone as the elder is deceased. Although you’d want the elder law atty to update your own legal. It’s more property/ real estate contract law territory. Absolutely not an DIY. Most Realtors aren’t familiar with MERP. But the Title companies should be. Good luck!