September 19, 2012 § 2 Comments

In a recent estate in this district, the Medicaid Commission took the position that if the decedent claimed homestead on a parcel of property, and was survived  by a spouse, one or more children or one or more grandchildren, then Medicaid would release its entire claim, regardless whether the property is worth more than the $75,000 statutory exemption.

In this particular case, the estate’s only asset was the homestead property. The lawyer representing the administrator called the Medicaid Commission to try to negotiate a reduction of its $110,000 claim and advised the commission’s staff attorney that the value of the homestead exceeded $75,000. The staff attorney replied that if the decedent was survived as set out above then Medicaid would release its claim, regardless of the value of the homestead.

Up to now, I had understood that Medicaid would release its claim only to the first $75,000, and would pursue its claim above that amount. In the situation cited above, I would have thought that Medicaid would try to pursue its claim to the $35,000 above the homestead exemption.

If this case does, indeed, indicate a shift in policy, you can be in a position to save your clients in estate matters considerable money simply by making a telephone call to the Medicaid Commission.

CAVEAT: Don’t take this post as authority to do anything. Call the Medicaid Commission yourself and get it from them what their position is with respect to your client’s situation.

If you handle any probate matters at all, you need to be familiar with the exemption statutes and understand how they affect the matters you handle. A helpful post on the topic is here. Not claiming exemptions can cost your clients thousands. Clients love lawyers who can save them thousands.

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  • R. E. Mongue says:

    This is indeed interesting as the determination should be made in accordance with 42 USC 1396 which, as I understand it, only allows for waivers for children under the age of 21 and adult children under special circumstances, i.e., there appears to be no provision allowing waiver due to grandchildren. The Mississippi Division of Medicaid states on its website that it will enforce recovery based on 42 USC 1396p and reprints the entire section:

    According to the Medicaid Division, the Mississippi Recovery Act itself is somewhat ambiguous requiring waiver under certain conditions that do not include grandchildren, but apparently making any recovery at all permissive be stating that the state “may” recover:

    Mississippi Medicaid Estate Recovery Law
    Mississippi Code §43-13-317
    (1) The division shall be noticed as an identified creditor against the estate of any deceased Medicaid recipient underSection 91-7-145.

    (2) In accordance with applicable federal law and rules and regulations, including those under Title XIX of thefederal Social Security Act, the division may seek recovery of payments for nursing facility services, home- and community-based services and related hospital and prescription drug services from the estate of a deceased Medicaidrecipient who was fifty-five (55) years of age or older when he or she received the assistance. The claim shall be waived by the division (a) if there is a surviving spouse; or (b) if there is a surviving dependent who is under the ageof twenty-one (21) years or who is blind or disabled; or (c) as provided by federal law and regulation, if it isdetermined by the division or by court order that there is undue hardship.

    Sources: Laws, 1994, ch. 649, §8; Laws, 2004, ch. 593, §7, eff from and after July 1, 2004. Sources: Laws, 1994, ch. 649, §8; Laws, 2004, ch. 593, §7, eff from and after July 1, 2004.

    • Larry says:

      That’s why I encourage attys to contact the commission in every case. Pursuing these exemptions is something I am pressing lawyers to do.Thanks for pointing that out.

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