Medicaid and Your Estate

What is the Medicaid Estate Recovery Program?

When a Medicaid recipient dies, the Medicaid Estate Recovery (MER) Program attempts to recover from the estate what Medicaid paid for medical assistance. Most medical assistance correctly paid by Medicaid is subject to MER.

What is a MER Estate?

It includes all real and personal property that the Medicaid recipient owned the moment before death including assets conveyed to others at death via survivorship, transfer-on-death and living trusts. The MER program can recover to the extent of the deceased Medicaid recipient's interest in such property.

When are Medicaid costs recovered?

MER can only be made after the death of the Medicaid recipient. But, MER cannot occur if the Medicaid recipient has:

• a surviving spouse or
• a child who is under age twenty-one; or
• the child is blind; or
• the child is permanently and totally disabled as determined by Social Security.

What are the Medicaid Estate Recovery Methods?

They vary depending on the asset type and whether a probate estate was opened for the deceased. The Ohio Department of Jobs and Family Services (ODJFS) no longer files Medicaid liens against real estate. Instead, ODJFS files Affidavits on Facts Relating to Title.

What is an Affadavit on Facts Relating to Title?

ODJFS is filing affidavits against real estate that the Medicaid recipient owned at death. The affidavit states the facts and amount of the MER claim and that it may represent a valid claim against the real estate.

Such affidavits have the practical effect of putting a question on the real estate title, causing a potential buyer to demand that the affidavit be satisfied or removed prior to purchase. By filing affidavits, ODJFS forces the owners of real estate to deal with its MER claim prior to selling the property.

How does ODJFS know when a probate estate is filed?

The administrator must file with Probate Court a MER reporting form listing all assets in the Medicaid recipient's estate. Probate Court mails the form to the MER Program administrator, who may then file a MER claim against the estate.

If there is no real estate or Probate estate, the MER recovery method may be a letter to the next of kin setting forth the MER claim and requesting information about the deceased's assets. The next of kin should tell MER if there is a surviving spouse, minor or disabled child (of any age), which will prevent recovery.

Can MER he avoided?

The best way to avoid MER is to transfer assets from the Medicaid recipient to his/her spouse prior to death. Such transfers are required by Medicaid within one year of Medicaid eligibility, but should be transferred as soon as possible. ODJFS is also required to forgo recovery where it would work an undue hardship.

Can I get help with my MER claim?

Pro Seniors' Legal Hotline for Older Ohioans offers free telephone legal advice to Ohioans age 60 and older: 800.488.6070.

This article was prepared by Tom Bedall, Esq., Managing Attorney at Pro Seniors, Inc. It is reprinted with permission from The Alert, a publication of The Legal Aid Society of Cleveland.