Medicaid estate recovery

The federal rule

States must try to recover some Medicaid costs from the estate of a person who got benefits at age 55 or older: nursing facility services, home and community-based services, and related hospital and prescription drug services. States may also recover other Medicaid costs. Recovery is not allowed while there is a surviving spouse, a child under 21, or a blind or disabled child of any age. States must have a way to waive recovery when it would cause undue hardship.

Law: 42 U.S.C. 1396p(b)

What counts as the estate

The 'estate' includes at least the property in the person's probate estate under state law. A state may choose to include other property, such as jointly owned property or property in a living trust. Each state page shows that state's rule.

This matters for a small estate. If a state counts only the probate estate, property that passes outside probate, such as an account with a named beneficiary, may be outside the claim. If the state counts more, it may not be. The table after this guide links to each state's agency, where you can ask what it does.

Who is protected

The federal rule says recovery is not allowed while there is a surviving spouse, a child under 21, or a blind or disabled child of any age. It also says each state must have a way to waive recovery when it would cause undue hardship. If you think one of these applies, ask the state agency in writing and keep a copy of what you send.

What to do when a notice arrives

If the person had Medicaid, expect that the state may send a notice or a claim. Do not ignore it. A notice usually has a deadline. A court self-help center or a legal aid office can help you read it and decide how to respond, and they can tell you whether a hardship waiver may fit. Some states also require the person who files a small estate petition to notify the Medicaid agency, so check your state page.

What our state data shows

48 of the 49 states we cover list a Medicaid estate recovery agency or page. The table after this guide links to each one. Each state page also has a section on Medicaid estate recovery in that state, with the agency, the phone number where one is published and the law that applies.

Why this matters before you transfer property

A small estate shortcut moves property to the family quickly. Medicaid estate recovery works the other way: the state looks to the estate for repayment. If property has already been passed on, a state may still ask about it, depending on how that state defines the estate. For that reason, find out early whether the person had Medicaid, keep a record of what was in the estate and what was done with it, and ask the agency or a legal aid office before you sign a sworn statement.

Questions to bring to legal aid

• Did the person get Medicaid after age 55?
• Does my state count property outside probate as part of the estate?
• Is there a surviving spouse, a child under 21, or a blind or disabled child?
• How do I ask for a hardship waiver, and by when?

Before you sign a small estate affidavit

A small estate affidavit does not cancel a Medicaid claim. If you are not sure whether the person had Medicaid, or whether the state may claim, ask before you sign. Signing is a sworn statement. The free checker and the guide on debts after someone dies can help you see the whole picture.