After a Medicaid recipient dies, the state will attempt to recoup whatever benefits it paid for the person’s care from his or her estate. This process is called “estate recovery.” For most Medicaid recipients, their house or principal residence is also the principal asset available. Unfortunately, this usually means that the state can order a sale of the house, and the person will be unable to leave his or her family home to his or her family.
There are some techniques, though, that may help protect at least a share of the family home. How well these techniques work depends in part on the state where the Medicaid recipient lives and where the house is located, but it’s worth exploring with an attorney whether they would work for you.
Life estates. One idea is to give the house to your children, but to retain a “life estate,” which is the right to live in the house for as long as you are alive. After you pass away, the house will go to your children automatically, so it won’t be part of your “estate” when you die.
A life estate gives you the right to continue to live in the house (or rent it to others). However, you will still be responsible for taxes and maintenance, and you won’t be able to sell the house without your children’s permission.
While simply giving away a large asset like a house might result in a very long period of ineligibility for Medicaid, giving away a house but retaining a life estate can sometimes avoid this problem, at least if you continue to live in the house for a year or more.
Trusts. Another idea is to put your house into a trust. Again, when you pass away, the house won’t be part of your estate, because it will be owned by the trust. Trusts can provide you with more flexibility than life estates, but they are also somewhat more complicated.
Begin your Medicaid planning early to protect your home. With both life estates and trusts, there can be significant consequences for gift, estate and capital gains taxes, so you’ll want to consult with an expert before you take any action.
Attorney Robert A. Scalise, Jr.