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NAELA News Journal - NAELA Journal Online

The Future of Estate Recovery: An Analysis of Different State Approaches and Changes

By Kristine J. Williams, Esq.

I. Introduction
Medicaid, “a cooperative federal-state program that ‘seeks to provide medical assistance to low-income individuals who are unable to meet the costs of their medical care,’”1 “has become one of the largest programs in the Federal budget as well as a major expenditure for State governments.”2 Since the program’s beginning, how Medicaid is funded, and thus the amount of people it is able to reach, is a crucial issue. In 2016, “Almost two-thirds of all Medicaid spending for services is attributable to the elderly and persons with disabilities, who make up just one-quarter of all Medicaid enrollees.”3

One means of continuing to provide funds for Medicaid is through estate recovery. Pursuant to the Omnibus Budget Reconciliation Act of 1993,4 in order for a state to receive federal assistance for its Medicaid program, the following applies:

the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan … from the individual’s estate or upon sale of the property subject to a lien imposed on account of medical assistance paid on behalf of the individual.5

At minimum, such recovery must be made against the Medicaid recipient’s probate estate; however, states may choose to adopt an expanded definition of estate, which may include recovery from nonprobate assets.6 More specifically, Title 42 U.S.C. § 1396p(b) provides:

(4) For purposes of this subsection, the term “estate,” with respect to a deceased individual —

(A) shall include all real and personal property and other assets included within the individual’s estate, as defined for purposes of State probate law; and

(B) may include, at the option of the State (and shall include, in the case of an individual to whom paragraph (1)(C)(i) applies), any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.7

If a state chooses to adopt the expanded definition of estate that appears in subparagraph (b) of 42 U.S.C. § 1396p for estate recovery purposes, the estate from which Medicaid expenses can be recovered has been explained as including the following:

assets which, under ordinary probate law, would not be part of the Medicaid recipient’s estate, because they would pass immediately to someone else on the recipient’s death. For example, when two persons hold property in joint tenancy with a right of survivorship and one dies, the deceased joint tenant’s interest ordinarily passes directly to the surviving joint tenant and is not part of the probate estate. Under the optional expanded definition allowed by federal law, for Medicaid recovery purposes the interest of a deceased joint tenant who had received Medicaid would be included in his estate, rather than passing directly to the surviving joint tenant.8

Each state takes a different approach in meeting the federal mandate. Overall, much has changed in how states address estate recovery since the last NAELA Journal article on this topic was published, in 2005.9 Most recently, in 2017, California, which had previously adopted expanded estate recovery, passed a law limiting Medicaid reimbursement to the probate estate.10 In California, estate is now defined as “all real and personal property and other assets in the individual’s probate estate that are required to be subject to a claim for recovery pursuant to Section 1396p(b)(4)(A) of Title 42 of the United States Code.”11 However, even though California has restricted what is recoverable from an estate, other states have been expanding their definition of what is included in a Medicaid recipient’s estate for estate recovery purposes.

As discussed in the remainder of this article, states are inconsistent in their approaches to and implementations of estate recovery. The states vary so drastically that as of this writing, 17 states have adopted an expanded definition of estate, one state has a modified expanded definition of the term, 26 states recover from probate estates only, and six states provide for recovery from probate estates with further modifications regarding what is included in the definition of estate. Overall, what this appears to be showing is that no state has come up with a perfect solution to paying the expenses associated with its Medicaid program. Therefore, rather than analyze how many states have expanded versus limited estate recovery, the more prevalent question may be, “What do the specific definitions of estate say?” More precisely, “Is there a trend that may help us be better prepared to plan for our clients moving forward?”

II. What Are the Competing Arguments for Expanded Versus Limited Estate Recovery?
The purpose of estate recovery is to “supplement Medicaid funds that are used to provide medical services to eligible persons.”12 Put another way, “[T]he legislative purpose behind the Medicaid recovery statutes is to prevent individuals from transferring their assets to survivors, heirs, or assigns, while at the same time benefiting from taxpayer funds intended to assist the poor.”13 However, competing interests exist when attempting to achieve this purpose. For example, opponents of expanded estate recovery have argued the following:

the estate recovery program is bad public policy that yields little in terms of dollars actually recovered but creates substantial non-financial problems, such as “widespread clinical depression in aged and disabled nursing home residents.” The program generally affects the poorest segment of the elderly population, those who cannot afford to buy long-term care insurance and those who cannot afford or do not appreciate the need for the legal advice necessary to engage in the various forms of estate-planning that can protect certain assets while retaining Medicaid eligibility.14

The Louisiana legislature stated, “[T]he legislature declares that a comprehensive plan should be developed to address the federal requirements for an estate recovery program while at the same time recognizing the state’s long tradition of protecting the citizens’ rights to home ownership and the state’s interest in assuring the transfer of real property within family units.”15

On the other hand, proponents of expanded estate recovery have argued that expanded estate recovery “capture[s] and make[s] available for payment of Medicaid-reimbursement claims certain interests in property that are not ordinarily subject to the payment of a decedent’s debts,”16 which in turn “frees more funds for provision of future services.”17 The challenge of these competing interests is illustrated by how each state has chosen to address the estate recovery mandate.

III. What Changes Have States Made to Their Estate Recovery Programs Through the Legislature?
In attempting to find the right balance between these competing interests, states are continuing to make changes to their estate recovery programs. For example, New York, similar to California, limits recovery to the probate estate, with estate defined as “all real and personal property and other assets included within the individual’s estate and passing under the terms of a valid will or by intestacy.”18 Such change in New York resulted from the removal of the following language in 2013 previously implementing expanded estate recovery in the state:

Pursuant to regulations adopted by the [Department of Health] commissioner, which may be promulgated on an emergency basis, an individual’s estate also includes any other property in which the individual has any legal title or interest at the time of death, including jointly held property, retained life estates, and interests in trusts, to the extent of such interests; provided, however, that a claim against a recipient of such property by distribution or survival shall be limited to the value of the property received or the amount of medical assistance benefits otherwise recoverable pursuant to this section, whichever is less. Nothing in this subdivision shall be construed as authorizing the department [Department of Health] or a social services district to impose liens or make recoveries that are prohibited by federal laws governing the medical assistance program.19

On the other hand, when California was limiting recovery to the probate estate, Nebraska was clarifying what is included for estate recovery purposes under its expanded estate recovery statute by adding the following language to Nebraska Revised Statute § 68-919(4)(b)(i):

(B) Notwithstanding anything to the contrary in subdivision (3) or (4) of section 68-923, assets conveyed or otherwise transferred to a survivor, an heir, an assignee, a beneficiary, or a devisee of the recipient of medical assistance through joint tenancy, tenancy in common, transfer on death deed, survivorship, conveyance of a remainder interest, retention of a life estate or of an estate for a period of time, living trust, or other arrangement by which value or possession is transferred to or realized by the beneficiary of the conveyance or transfer at or as a result of the recipient’s death to the full extent authorized in 42 U.S.C. 1396p(b)(4)(B). Such other arrangements include insurance policies or annuities in which the recipient of medical assistance had at the time of death any incidents of ownership of the policy or annuity or the power to designate beneficiaries and any pension rights or completed retirement plans or accounts of the recipient. A completed retirement plan or account is one which because of the death of the recipient of medical assistance ceases to have elements of retirement relating to such recipient and under which one or more beneficiaries exist after such recipient’s death; and

(ii) Estate of a recipient of medical assistance does not include:

(A) Insurance policies in proportion to the premiums and other payments to the insurance carrier that were paid by someone other than the recipient of medical assistance or the recipient’s spouse;

(B) Insurance proceeds and accounts in institutions under federal supervision or supervision of the Department of Banking and Finance or Department of Insurance to the extent subject to a security interest where the secured party is not a related transferee as defined in section [68-990];

(C) Insurance proceeds, any trust account subject to the Burial Pre-Need Sale Act, or any limited lines funeral insurance policy to the extent used to pay for funeral, burial, or cremation expenses of the recipient of medical assistance;

(D) Conveyances of real estate made prior to [August 24, 2017,] that are subject to the grantor’s retention of a life estate or an estate for a period of time; and

(E) Any pension rights or completed retirement plans to the extent that such rights or plans are exempt from claims for reimbursement of medical assistance under federal law.20

Other states are also continuing to expand estate recovery. For example, Minnesota, with a long history of amendments, has been expanding its definition of estate for estate recovery purposes since 2003, when the state expanded estate recovery to include life tenants and joint tenants with a right of survivorship.21 In 2008, another recoverable item was added to the statute: “(5) the person’s legal title or interest at the time of the person’s death in real property transferred under a transfer on death deed under section 507.071, or in the proceeds from the subsequent sale of the person’s interest in the real property.”22 The statute was further amended in 2009 to its current form to read, “(5) assets conveyed to a survivor, heir, or assign of the person through survivorship, living trust, transfer-on-death of title or deed, or other arrangements.”23

Wisconsin expanded estate recovery in 2013, when the legislature approved the following definition of property of decedent for estate recovery purposes:

all real and personal property to which the recipient held any legal title or in which the recipient had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, living revocable trust, or any other arrangement, excluding an irrevocable trust.24

North Carolina, which has general recovery from the probate estate, partly expanded estate recovery in 2010, when an exception was added for those who “received benefits under a qualified long-term care partnership policy,” in which case the expanded definition provided in the federal statute applies.25 This is the same approach taken in Illinois, which has not made any changes to its estate recovery statute in recent years.26

Lastly, in Arkansas, where recovery is limited to the probate estate, the legislature in 2007 extended recovery to include transfer-on-death deeds such that recovery is now permitted as follows: “The department [Department of Human Services] may make a claim against the estate of a deceased recipient or the interest acquired from the deceased recipient by a grantee of a beneficiary deed under § 18-12-608 for the amount of any benefits distributed or paid or charges levied by the department.”27

While some states expanded estate recovery, Maine, with long-standing expanded estate recovery, limited such recovery in 2009 by excluding recovery from “joint tenancy in real property.”28

IV. What Changes Have States Made to Their Estate Recovery Programs Through the Courts?
Changes also have been made to estate recovery programs outside the legislature. For example, although a Tennessee statute continues to provide for recovery from the probate estate,29 in 2012 the Tennessee Court of Appeals expanded the definition of estate to include revocable trusts.30 In Stidham, the question before the court was “[w]hether the Bureau [of TennCare] may use assets held in a revocable trust to satisfy a claim against an estate for medical benefits.”31 The court concluded, “[A]ny property that can be reached by the personal representative pursuant to Tennessee Code Annotated section 35-15-505 for the payment of the debts of an insolvent estate may be reached by the probate court for the purpose of reimbursing the Bureau.”32

Likewise, in Missouri, estate recovery is limited to the probate estate via statute;33 however, the Missouri Court of Appeals interpreted estate to include “the value of nonprobate transfers” pursuant to Missouri Revised Statutes § 461.300.34 In Jones, when a Medicaid recipient’s home passed to his intended beneficiaries via a beneficiary deed, the court looked at “whether Missouri’s estate recovery statutes allow the State to proceed under section 461.300,” which the legislature considers to be part of the probate code.35 The court concluded, “[A] proceeding under section 461.300 allows the decedent’s estate to recover the value of nonprobate assets when the assets already in the estate are insufficient to cover the claims of the decedent’s creditors.”36

The expanded definition of the federal statute also has been taken one step further by the Idaho Supreme Court,37 when it held that the remainder interest of a Medicaid recipient’s life estate is subject to recovery.38

Lastly, in Mississippi, where recovery is limited to the probate estate,39 the Mississippi Court of Appeals further limited recovery by excluding recovery from property that falls within the state’s homestead exemption.40 In Stinson, the court reasoned, “Mississippi Code Annotated section 91-1-21 provides that exempt property is not liable for the debt of the decedent if there is a surviving spouse, children or grandchildren.” Therefore, the court held that “children and grandchild are entitled to inherit the exempt property free of [Medicaid recipients’] debts.”41

V. What Changes Have States Made to Their Estate Recovery Programs Through Administrative Agencies?
A number of states have expanded estate recovery via regulation. For example, Georgia has statutorily limited estate recovery to the probate estate;42 however, regulations define estate as follows:

all real and personal property under the probate code. Estate also includes real property passing by reason of joint tenancy, right of survivorship, life estate, survivorship, trust, annuity, homestead or any other arrangement. The estate also includes excess funds from a burial trust or contract, promissory notes, cash, and personal property. Estates valued at $25,000 or less are exempt from estate recovery because it is not cost effective for the state to pursue recovery.43

The same is true in South Dakota, whose statute provides for recovery from the probate estate44 and regulations define estate as follows:

all real and personal property and other assets included within the individual’s estate as defined in SDCL 29A-1-201, and any other real and personal property or other assets in which the individual had any legal title or interest at the time of death, including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement, including any funds remaining in an individual’s prepaid burial trust or prepaid burial account after the individual’s reasonable burial expenses are paid.45

VI. What Unsuccessful Changes Have States Attempted?
Even though some states have been successful in expanding or limiting estate recovery, other states have attempted to make such changes to their estate recovery programs but have failed. For example, Massachusetts continues to recover from the probate estate46 after the following language was removed from the 2017 final budget:

If an individual became eligible for medical assistance on or after July 1, 2016, the term “estate” shall mean any interest in real and personal property and other assets in which the individual immediately prior to death had any legal title or interest, to the extent of such interest. This shall include interests in real and personal property and other assets that would pass to a survivor, heir or assignee of the decedent through joint tenancy, tenancy by the entirety, life estate, living trust, right of survivorship, beneficiary designation or other arrangement. This shall not include annuities and life insurance held on the life of a decedent, with the exception of payments otherwise includable in the decedent’s probate estate.47

Likewise, in Pennsylvania, estate recovery continues to be limited to the probate estate after a number of attempted changes to expand estate recovery failed to pass.48 These attempted changes include a 2009 bill that expanded estate recovery49 and a 2010 bill,50 reintroduced in 2011, that tried to expand, with approval of the governor, the state’s Department of Human Services’ ability to expand estate recovery to include “other real and personal property in which an individual had any legal title or interest at the time of death.”51

In 2011, a bill limiting recovery to the probate estate was introduced in Michigan, which, in 2007, became the last state to address estate recovery for the first time.52 The bill attempted to expand estate recovery; however, it did not move forward.53

Lastly, in Oregon, estate is defined as follows:

all real and personal property and other assets in which the deceased individual had any legal title or interest at the time of death including assets conveyed to a survivor, heir or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust or other similar arrangement.54

An Oregon administrative agency further expanded estate recovery in 2010 to include a provision extending a person’s estate to the following:

(viii) Other similar arrangement, such as an interspousal transfer of assets, including one facilitated by a court order, which occurred no earlier than 60 months prior to the first date of request established from the recipient’s and the recipient’s spouse’s applications, or at any time thereafter, whether approved, withdrawn, or denied, for the public assistance programs referenced in OAR 461-135-0835(2).55

This regulation, however, was invalidated by the Oregon Supreme Court.56 Therefore, an administrative rule, adopted June 5, 2017, now includes recovery that simply extends the legislative definition of estate recovery to include recovery from “[t]enancy by the entirety,” “[t]ransfer on death deed,” and “[a]nnuity purchased on or after April 1, 2001.”57

VII. What Are the Specific State Statutes Actually Saying?
States that have not changed their estate recovery programs in the past decade are split between expanded and limited estate recovery. For example, 11 states have long-standing expanded estate recovery programs — Iowa,58 Kentucky,59 Montana,60 Nevada,61 New Hampshire,62 New Jersey,63 North Dakota,64 Ohio,65 Utah,66 Washington,67 and Wyoming68 — and in 19 states, recovery is limited to the probate estate — Alabama,69 Alaska,70 Arizona,71 Colorado,72 Connecticut,73 Delaware,74 Florida,75 Hawaii,76 Louisiana,77 Maryland,78 Mississippi,79 New Mexico,80 Oklahoma,81 Rhode Island,82 South Carolina,83 Texas,84 Vermont,85 Virginia,86 and West Virginia.87

Since there does not appear to be a clear preference regarding expanded versus limited estate recovery, reviewing the specific approaches states take can tell us more about what may be expected moving forward. First, in states that have adopted expanded estate recovery, some states, including New Jersey,88 Ohio,89 Oregon,90 Utah,91 and Wyoming,92 have simply adopted the language used in 42 U.S.C. § 1396p(b), which includes recovery from assets conveyed “through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”

On the other hand, some states with expanded estate recovery have made slight modifications to the language in the federal statute. For example, in Montana, the state has extended the federal definition to include “(ii) property from a deceased recipient’s estate otherwise distributed to or in the possession of a person through any other procedure or when a legal procedure for distribution has not been followed.”93 Kansas has also extended the federal definition to include interests in “transfer-on-death deed[s], payable-on-death contract[s], … [and] annuities.”94

Washington’s statute, which states, “[T]he department [Department of Social and Health Services] shall seek adjustment or recovery from the individual’s estate and from nonprobate assets of the individual as defined by RCW 11.02.005,”95 defines nonprobate assets as follows:

a right or interest passing under a joint tenancy with right of survivorship, joint bank account with right of survivorship, transfer on death deed, payable on death or trust bank account, transfer on death security or security account, deed or conveyance if possession has been postponed until the death of the person, trust of which the person is grantor and that becomes effective or irrevocable only upon the person’s death, community property agreement, individual retirement account or bond, or note or other contract the payment or performance of which is affected by the death of the person. “Nonprobate asset” does not include: A payable-on-death provision of a life insurance policy, annuity, or other similar contract, or of an employee benefit plan; a right or interest passing by descent and distribution under chapter 11.04 RCW. … For the definition of “nonprobate asset” relating to testamentary disposition of nonprobate assets, see RCW 11.11.010(7).96

In Indiana, a person’s estate also includes “(3) any real or personal property conveyed through a nonprobate transfer; and (4) any sum due after June 30, 2005, to a person after the death of a Medi­caid recipient that is under the terms of an annuity contract purchased after May 1, 2005, with the assets of the Medi­caid recipient.”97 However, a nonprobate transfer does not include the following transfers: “(1) a survivorship interest in a tenancy by the entireties real estate; (2) a life insurance policy or annuity; (3) the death proceeds of a life insurance policy or annuity; (4) an individual retirement account or a similar account or plan; or (5) benefits under an employee benefit plan.”98

Lastly, even though Maine has expanded estate recovery, the state limited such expansion by excluding recovery from joint tenancy in real property.99

VIII. What Can We Take Away?
The trend appears to continue toward expanded estate recovery, with a fair amount of estate recovery changes occurring outside legislation. Three states have further expanded their existing expanded estate recovery programs, and three other states, where recovery had been limited to the probate estate, have implemented expanded estate recovery.

Of the three states that previously recovered from the probate estate only, two states made estate recovery changes via administrative agencies and only one made changes statutorily. Additionally, four states, where recovery was limited to the probate estate, have expanded estate recovery beyond the probate estate to some degree: two legislatively and two via the courts. The most successful estate recovery changes appear to occur as a result of a partial expansion or limitation.

On the other hand, not all attempted changes to state estate recovery programs have been successful; four states failed to expand their programs, three of which attempted expansion by statute and one of which attempted expansion by regulation. The two states that switched from expanded estate recovery to limited estate recovery now appear to be outliers.

Even though estate recovery changes have been attempted, sometimes successfully, the future of estate recovery feels unknown. The switch in California, an early adopter of expanded estate recovery, to limited estate recovery may indicate a trend toward the latter. However, at this point, there does not appear to be any clear indication that this will be the case.

With health care costs continuing to rise,100 each state will be hard-pressed to find the right balance between providing those in need with medical assistance and giving individuals with limited assets the ability to pass on what little they have to their family members after they die. States’ budgets, populations, and political climates differ considerably; therefore, it is not surprising that states are all over the board in attempting to balance these needs.

The future of estate recovery is unclear. Therefore, we must be prepared for continuing changes to state estate recovery programs as we strive to meet the planning needs of our clients.

Citations
1 In re Est. of Jones, 280 S.W.3d 647, 650 (Mo. App. 2009) (quoting Hutchings ex rel. Hutchings v. Roling, 193 S.W.3d 334, 340 (Mo. App. E. Dist.. 2006)).

2 Daley v. Sec. of the Exec. Off. of Health & Human Servs., 477 Mass. 188, 189 (2017) (citing R. Rudowitz, Medicaid Financing: The Basics (Kaiser Commn. on Medicaid & the Uninsured Dec. 2016)).

3 R. Rudowitz, Medicaid Financing: The Basics (Kaiser Commn. on Medicaid & the Uninsured Dec. 2016).

4 Pub. L. No. 103-66, § 13612, 107 Stat. 312, 627 (1993).

5 42 U.S.C. § 1396p(b) (2018) (emphasis added).

6 See id.; see also Adminstr., St. Medicaid Est. Recovery Program v. Miracle, 31 N.E.3d 658, ¶ 10 (Ohio App. 4th Dist. 2015) (“[E]ach participating state must define a recipient’s ‘estate.’”).

7 42 U.S.C. § 1396p(b) (emphasis added).

8 In re Est. of Barg, 752 N.W.2d 52, 61 (Minn. 2008).

9 Ian S. Oppenheim & Alex L. Moschella, National Perspective on Expanded Estate Recovery: Case Law Analysis, Emerging Legislative Trends and Responsive Strategies for the Elder Law Attorney, 1 NAELA J. 1 (2005).

10 Cal. Legis. Info., Senate Bill No. 833 Health (2016), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB833 (accessed Oct. 22, 2019).

11 Cal. Welfare & Instns. Code § 14009.5(f)(3) (West 2018).

12 Fla. Stat. § 409.9101(2) (2018).

13 In re Est. of Peterson, 157 Idaho 827, 340 P.3d 1143, 1149 (Idaho 2014) (citing Idaho Dept. of Health & Welfare v. McCormick, 153 Idaho 468, 472, 283 P.3d 785, 789 (Idaho 2012)).

14 W. Va. v. U.S. Dept. of Health & Human Servs., 289 F.3d 281 (4th Cir. 2002) (internal citations omitted).

15 La. Rev. Stat. Ann § 153.4.C (2018).

16 In re Est. of Serovy, 711 N.W.2d 290, 294 (Iowa 2006).

17 In re Est. of Melby, 841 N.W.2d 867, 875 (Iowa 2014) (citing In re Barkema Trust, 690 N.W.2d 50, 55 (Iowa 2004)).

18 N.Y. Soc. Servs. Law § 369(6) (McKinney 2018).

19 N.Y. St. Assembly, A09056 Summary (2012), https://assembly.state.ny.us/leg/?default_fld=%0D%0A&leg_video=&bn=A9056&term=2011&Summary=Y&Memo=Y&Text=Y (accessed Oct. 22, 2019).

20 Neb. Legis., Legislative Bill 268 (2017), https://nebraskalegislature.gov/FloorDocs/105/PDF/Slip/LB268.pdf (accessed Oct. 22, 2019). Neb. Rev. Stat. § 68-919(4)(b) (effective May 31, 2019) further provides, “(i) Estate of a recipient of medical assistance means any real estate, personal property, or other asset in which the recipient had any legal title or interest at the time of the recipient’s death, to the extent of such interests. In furtherance and not in limitation of the foregoing, the estate of a recipient of medical assistance also includes: (A) Assets to be transferred to a beneficiary described in section 77-2004 or 77-2005 in relation to the recipient through a revocable trust or other similar arrangement which has become irrevocable by reason of the recipient’s death … .”

21 Minn. Legis., Off. of the Revisor of Stat., Minnesota Session Laws – 2003, 1st Special Session, Chapter 14 — H.F. No. 6 (2003), https://www.revisor.mn.gov/laws/2003/1/Session+Law/Chapter/14 (accessed Oct. 22, 2019) (“[T]he person’s estate consists of: (1) their probate estate; (2) all of the person’s interests or proceeds of those interests in real property the person owned as a life tenant or as a joint tenant with a right of survivorship at the time of the person’s death; (3) all of the person’s interests or proceeds of those interests in securities the person owned in beneficiary form as provided under sections 524.6-301 to 524.6-311 at the time of the person’s death, to the extent they become part of the probate estate under section 524.6-307; and (4) all of the person’s interests in joint accounts, multiple party accounts, and pay on death accounts, or the proceeds of those accounts, as provided under sections 524.6-201 to 524.6-214 at the time of the person’s death to the extent they become part of the probate estate under section 524.6-207.”).

22 Minn. Legis., Off. of the Revisor of Stat., Minnesota Session Laws – 2008, Regular Session, Chapter 341 — H.F. No. 3420 (2008), https://www.revisor.mn.gov/laws/2008/0/341 (accessed Oct. 22, 2019).

23 Minn. Legis., Off. of the Revisor of Stat., Minnesota Session Laws – 2009, Regular Session, Chapter 79 — H.F. No. 1362 (2009), https://www.revisor.mn.gov/laws/2009/0/79 (accessed Oct. 22, 2019); see also Minn. Stat. § 256B.15, subdiv. 1a(b) (2019).

24 See Wis. Stat. § 49.496(1)(cm) (2018); see also id. at § 49.496(3)(aj)1 (“Property that is subject to the department’s [Department of Health Services’] claim under par. (a) in the estate of a recipient or in the estate of a nonrecipient surviving spouse is all property of a decedent that is included in the estate.”).

25 See N.C. Gen. Stat. § 108A-70.5(b)(2) (2018) (“All the real and personal property considered assets of the estate available for the discharge of debt pursuant to G.S. 28A-15-1. … For individuals who have received benefits under a qualified long-term care partnership policy as described in G.S. 108A-70.4, ‘estate’ also includes any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”); see also Gen. Assembly of N.C., Sess. 2009, Session Law 2010-68, Senate Bill 1193 (2009), https://www.ncleg.gov/Sessions/2009/Bills/Senate/PDF/S1193v6.pdf (accessed Oct. 22, 2019).

26 See 215 Ill. Comp. Stat. Ann. 5/13 (West 2018) (“The term ‘estate’, as used in this Section, with respect to a deceased person, means all real and personal property and other assets included within the person’s estate, as that term is used in the Probate Act of 1975; however, in the case of a deceased person who has received (or is entitled to receive) benefits under a long-term care insurance policy in connection with which assets or resources are disregarded to the extent that payments are made or because the deceased person received (or was entitled to receive) benefits under a long-term care insurance policy, ‘estate’ also includes any other real and personal property and other assets in which the deceased person had any legal title or interest at the time of his or her death (to the extent of that interest), including assets conveyed to a survivor, heir, or assignee of the deceased person through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”).

27 Ark. Code Ann. § 20-76-436(a)(2)(A) (2018).

28 Me. St. Legis., Chapter 150, S.P. 129 - L.D. 365, in Laws of the State of Maine as Passed by the One Hundred and Twenty-Fourth Legislature 230 (Revisor of Stat. 2009), http://lldc.mainelegislature.org/Open/Laws/2009/2009_PL_c150.pdf (accessed Oct. 22, 2019); see also Me. Rev. Stat. Ann. tit. 22, § 14.2-I.B (2018) (effective July 1, 2019) (“[T]he term ‘estate’ means: (1) All real and personal property and other assets included in the recipient’s estate, as defined in Title 18-C, section 1-201; and (2) Any other real and personal property and other assets in which the recipient had any legal interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the deceased recipient through tenancy in common, survivorship, life estate, living trust, joint tenancy in personal property or other arrangement but not including joint tenancy in real property.”).

29 See Tenn. Code Ann. § 71-5-116 (2017) (“[A]djustment or recovery from the recipient’s estate may be pursued only after the death of the individual’s surviving spouse”).

30 See In re Est. of Stidham, 438 S.W.3d 535 (Tenn. App. Eastern Sec. 2012).

31 Id. at 536.

32 Id. at 543.

33 See Mo. Rev. Stat. § 473.398 (2018) (“Estate means the real and personal property of the decedent or ward, as from time to time changed in form by sale, reinvestment or otherwise, and augmented by any accretions and additions thereto and substitutions therefor, and diminished by any decreases and distributions therefrom.”).

34 Jones, 280 S.W.3d at 649.

35 Id. at 649, 651–652.

36 Id.

37 Idaho defines estate as follows: “Any other real and personal property and other assets in which the individual had any legal title or interest at the time of death, to the extent of such interest, including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.” Idaho Code Ann. § 56-218(4)(b) (West 2018).

38 See Peterson, 340 P.3d at 1154 (emphasis added).

39 See Miss. Code Ann. § 43-13-317 (West 2018) (“[T]he 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 Medicaid recipient.”).

40 See In the Matter of the Est. of Darby v. Stinson, 68 So. 3d 702 (Miss. App. 2011).

41 Id. at ¶ 16.

42 See Ga. Code Ann. § 49-4-147.1(a) (West 2018) (“In accordance with applicable federal law and regulations, including those under Title XIX of the federal Social Security Act, the department [Department of Human Services] may make claim against the estate of a Medicaid recipient for the amount of any medical assistance payments made on such person’s behalf by the department … .”).

43 Ga. Comp. R. & Regs. § 111-3-8-.02(6) (2018) (emphasis added).

44 See S.D. Codified Laws § 28-6-23 (2018) (“The Department of Social Services shall establish a system of recovery of medical assistance correctly paid by or through the department. … The secretary of social services shall adopt rules, pursuant to chapter 1-26, to define the scope of recoveries, establish hardship limitations on recoveries, establish limits on recoveries, and provide rules required to obtain federal financial participation in the medical assistance program.”).

45 Admin. R. S.D. 67:48:02:01 (2018).

46 See Mass. Gen. Laws ch. 118E, § 31(c) (2018) (“For purposes of this section, ‘estate’ shall mean all real and personal property and other assets includable in the decedent’s probate estate under the General Laws.”).

47 [Mass.] Gov.’s Budget FY 2017, Outside Section 11: MassHealth Estate Recovery (2017), https://budget.digital.mass.gov/bb/h1/fy17h1/os_17/h11.htm (accessed Oct. 23, 2019); see also 191st Gen. Ct. of the Cmmw. of Mass., Chapter 133 (2016), https://malegislature.gov/Laws/SessionLaws/Acts/2016/Chapter133 (accessed Oct. 23, 2019).

48 See 62 Pa. Consol. Stat. § 1412 (2018) (“Under this program, the department [Department of Human Services] may recover from the probate estate of an individual the amount of medical assistance paid … .”); see also Pa. Code tit. 55, § 258.3(a) (2018) (“All estate property is subject to the Department’s claim. Estate property includes all real and personal property of a decedent which is subject to administration by a decedent’s personal representative, whether actually administered or not administered.”).

52 Mich. Comp. Laws § 400.112g (West 2018) (“[T]he department of community health shall establish and operate the Michigan [M]edicaid estate recovery program to comply with requirements contained in section 1917 of title XIX.”); see also St. of Mich., 94th Legis., Reg. Sess. of 2007, Enrolled Senate Bill No. 374 (2007), https://www.legislature.mi.gov/documents/2007-2008/publicact/pdf/2007-PA-0074.pdf (accessed Oct. 24, 2019).

53 Mich. Legis., Senate Bill No. 404 (2011), https://www.legislature.mi.gov/documents/2011-2012/billintroduced/Senate/pdf/2011-SIB-0404.pdf (accessed Oct. 24, 2019).

54 Or. Rev. Stat. § 416.350(6)(a) (2017).

55 49(5) Or. Bull. 81 (May 1, 2010), http://library.state.or.us/repository/2010/201001041608311/rules_May_2010_Bulletin.pdf (accessed Oct. 24, 2019).

56 See Nay v. Dept. of Human Servs., 360 Or. 668, 385 P.3d 1001 (Or. 2016) (The Court concluded, “[T]he department [Department of Human Services] exceeded its authority in adopting [the rules], and they are invalid under ORS 183.400(4)(b).”).

57 Or. Admin. R. 461-135-0832(13) (2019) (“‘Estate’ means with respect to the collection of payments made for medical assistance provided on or after July 18, 1995 all real property, personal property, or other assets, wherever located, in which a recipient had any legal title or ownership or beneficial interest at the time of death, including real property, personal property, or other assets conveyed by the recipient to, subsequently acquired by, or traceable to, a person, including the recipient’s spouse and any successor-in-interest to the recipient’s spouse, through: (a) Tenancy by the entirety; (b) Joint tenancy; (c) Tenancy in common; (d) Not as tenants in common, but with the right of survivorship; (e) Life estate; (f) Transfer on death deed; (g) Living trust; (h) Annuity purchased on or after April 1, 2001; or (i) Other similar arrangement.”).

58 See Iowa Code Ann. § 249A.53(2)(c) (West 2018) (“For purposes of this section, the estate of a medical assistance recipient, surviving spouse, or surviving child includes any real property, personal property, or other asset in which the recipient, spouse, or child had any legal title or interest at the time of the recipient’s, spouse’s, or child’s death, to the extent of such interests, including but not limited to interests in jointly held property, retained life estates, and interests in trusts.”).

59 See 907 Ky. Admin. Regs. 1:585(3) (2018) (“‘Estate’ means: (a) All real and personal property or other assets owned by the deceased recipient that would be included as probate property under Kentucky law; and (b) All real and personal property or other assets in which the deceased recipient had legal title or interest at the time of death, to the extent of the recipient’s interest, whether the asset was conveyed to a survivor, heir or assign of the deceased recipient through joint tenancy, tenancy in common survivorship, life estate, living trust or other arrangement.”).

60 See Mont. Code Ann. § 53-6-167(5)(a) (2017) (“For purposes of this section, property of a deceased recipient received by distribution or survival is any real or personal property or other assets in which the recipient had any right, title, or interest immediately prior to the time of death, including but not limited to assets passing to one or more survivors, heirs, assignees, or beneficiaries of the deceased recipient through joint tenancy, tenancy in common, right of survivorship, conveyance by the recipient subject to life estate, living trust, or other arrangement.”).

61 See Nev. Rev. Stat. § 422.29302 (2018) (“(a) The undivided estate of the person who received those benefits; and (b) Any recipient of money or property from the undivided estate of the person who received those benefits.”).

62 N.H. Rev. Stat. Ann. § 167:14-a (2018). (“V. All property, real or personal, in a revocable trust is subject to recovery by the department [N.H. Department of Health and Human Services] for recovery for any medical assistance provided the decedent. … VI. (a) For purposes of recovering the costs of medical assistance, the estate of a recipient shall include all property, real or personal, which at the time of a recipient’s death was held by the recipient in joint tenancy with rights of survivorship, or life estate for all such title or interest established on or after July 1, 2005.”).

63 See N.J. Stat. Ann. § 30:4D-7.2(3) (West 2018) (“As used in this section, ‘estate’ includes all real and personal property and other assets included in the recipient’s estate as defined in N.J.S.3B:1-1, as well as any other real and personal property and other assets in which the recipient had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the recipient through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.”).

64 See N.D. Cent. Code § 50-24.1-07 (2018) (“[T]he total amount of medical assistance paid on behalf of the recipient … must be allowed as a preferred claim against the decedent’s estate … . Every personal representative, upon the granting of letters of administration or testamentary shall forward to the department [Department of Human Services] a copy of the petition or application commencing probate, heirship proceedings, or joint tenancy tax clearance proceedings in the respective district court, together with a list of the names of the legatees, devisees, surviving joint tenants, and heirs at law of the estate.”).

65 See Ohio Rev. Code Ann. § 5162.21(A)(1) (West 2018). (“‘Estate’ includes both of the following: (a) All real and personal property and other assets to be administered under Title XXI of the Revised Code and property that would be administered under that title if not for section 2113.03 or 2113.031 of the Revised Code; (b) Any other real and personal property and other assets in which an individual had any legal title or interest at the time of death (to the extent of the interest), including assets conveyed to a survivor, heir, or assign of the individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”).

66 See Utah Code Ann. § 26-19-102(12) (West 2018) (“‘Recovery estate’ means, regarding a deceased recipient: (a) all real and personal property or other assets included within a decedent’s estate as defined in Section 75-1-201; (b) the decedent’s augmented estate as defined in Section 75-2-203; and (c) that part of other real or personal property in which the decedent had a legal interest at the time of death including assets conveyed to a survivor, heir, or assign of the decedent through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”).

67 See Wash. Rev. Code § 43.20B.080 (2018) (“[T]he department [Department of Social and Health Services] shall seek adjustment or recovery from the individual’s estate and from nonprobate assets of the individual as defined by RCW 11.02.005 … .”).

68 See Wyo. Stat. Ann. § 42-4-206 (2018) (“‘Estate’ shall include all real and personal property and other assets included within the individual’s estate, as defined for purposes of this state’s probate law, and includes any other real and personal property and other assets in which the individual had any legal title or interest at the time of death to the extent of that interest, including such assets conveyed to a survivor, heir or assign of the deceased individual through joint tenancy, tenancy in common, survivorship life estate, living trust or other arrangement.”).

69 See Ala. Code § 38-6-1 (2018) (“The State Department of Human Resources is authorized to establish, in keeping with Title I of the Federal Social Security Act as amended, a medical assistance program for certain persons 65 years of age and over not receiving old age pensions.”).

70 See Alaska Stat. § 47.07.055 (West 2018) (“(a) The estate of an individual who received medical assistance payments is subject to a claim for recovery of the medical assistance after the individual’s death that, except as provided in (b) of this section, may be secured by a lien filed against the individual’s real property during the individual’s lifetime.”).

71 See Ariz. Rev. Stat. Ann. § 36-2935A (2018) (“file a claim against a member’s estate to recover paid assistance”).

72 See Colo. Rev. Stat. Ann. § 25.5-4-302(2)(a) (current through end of 2019 Reg. Sess.) (“Medical assistance paid on behalf of any individual … may be recovered by the state department [Department of Health Care Policy and Financing] from the estate of such individual … .”).

73 See Conn. Gen. Stat. Ann. § 17b-95 (2018) (“[U]pon the death of any person who has at any time been a beneficiary of aid under the … medical assistance program … the state shall have a claim against such … person’s estate for all amounts paid on behalf of … such person under the … medical assistance program … .”).

74 See Del. Code Ann. tit. 25, § 5001(c) (2018) (“‘Estate’ means all real property, as well as all personal property which constitutes assets of the individual’s estate as described in Chapter 19 of Title 12.”).

75 See Fla. Stat. § 409.9101(2) (“Medicaid estate recovery shall be accomplished by the agency filing a statement of claim against the estate of a deceased Medicaid recipient.”).

76 See Haw. Rev. Stat. § 346-37 (West 2018) (“The department [Department of Human Services] shall file a claim against the estate of a deceased recipient of medical assistance for the amount of medical assistance granted.”).

77 See La. Rev. Stat. Ann. § 46:153.4D (2018) (“The Louisiana Department of Health shall establish an estate recovery program for the purpose of recovering medical assistance payments made on behalf of individual recipients from the succession estates of those individuals.”).

78 See Md. Health-Gen. Code Ann. § 15-121(a) (West 2018) (“[T]he Department [of Human Services] may make claim against the estate of a deceased Program recipient for the amount of any medical assistance payments under this title.”).

79 See Miss. Code Ann. § 43-13-317(2) (“In accordance with applicable federal law and rules and regulations, including those under Title XIX of the federal 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 Medicaid recipient.”).

80 See N.M. Stat. Ann. § 27-2A-3B (2018) (“‘[E]state’ means real and personal property and other assets of the individual subject to probate or administration pursuant to the provisions of the Uniform Probate Code [45-1-1 NMSA 1978].”).

81 See Okla. Admin. Code § 317:35-9-15(c)(2) (2018) (“The estate consists of all real and personal property and other assets included in member’s estate as defined by Title 58 of the Oklahoma Statutes.”).

82 See R.I. Gen. Laws § 40-8-15(a)(2) (2018) (“‘[E]state’ with respect to a deceased individual shall include all real and personal property and other assets included or includable within the individual’s probate estate.”).

83 See S.C. Code Ann. § 43-7-460(F)(1) (2018) (“‘Estate’ means real property, personal property, and other assets included within the individual’s estate as defined in Section 62 1 201(11).”).

84 See Tex. Hum. Res. Code Ann. § 32.021(b) (West 2018) (“The commission shall cooperate with federal agencies designated by federal law to administer medical assistance in any reasonable manner necessary to qualify for federal funds.”).

85 See Vt. Stat. Ann. tit. 14, § 1204(2) (West 2018) (“The claimant may commence a proceeding against the executor or administrator in any court where the executor or administrator may be subjected to jurisdiction, to obtain payment of the claim against the estate.”); see also id. at tit. 33, § 2113 (“Whenever a person, who has received General Assistance from the Department [of Vermont Health Access], owns or thereafter acquires real or personal property or an interest therein … the Department on behalf of the State of Vermont may recover on this statute against him or her the amount the Department has expended for General Assistance furnished him or her or his or her family. If the person is deceased, the amount expended by the Department shall be allowed as a claim against his or her estate as a debt due the State.”).

86 See Va. Code Ann. § 32.1-327 (2018) (“[T]he Department [of Medical Assistance Services] may make claim against the estate of an indigent or medically indigent person for the amount of any medical assistance payments made on his behalf by the Department.”).

87 See W. Va. Code § 9-5-11c.(a) (2018) (“[T]he Department of Health and Human Resources, in addition to any other available remedy, may file a claim or lien against the estate of the recipient.”).

88 See N.J. Stat. Ann. § 30:4D-7.2(3) (“As used in this section, ‘estate’ includes all real and personal property and other assets included in the recipient’s estate as defined in N.J.S.3B:1-1, as well as any other real and personal property and other assets in which the recipient had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the recipient through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.”).

89 See Ohio Rev. Code Ann. § 5162.21(A)(1) (“‘Estate’ includes both of the following: (a) All real and personal property and other assets to be administered under Title XXI of the Revised Code and property that would be administered under that title if not for section 2113.03 or 2113.031 of the Revised Code; (b) Any other real and personal property and other assets in which an individual had any legal title or interest at the time of death (to the extent of the interest), including assets conveyed to a survivor, heir, or assign of the individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”).

90 See Or. Rev. Stat. § 416.350(6)(a) (“‘Estate’ includes all real and personal property and other assets in which the deceased individual had any legal title or interest at the time of death including assets conveyed to a survivor, heir or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust or other similar arrangement.”).

91 See Utah Code Ann. § 26-19-102(12) (“‘Recovery estate’ means, regarding a deceased recipient: (a) all real and personal property or other assets included within a decedent’s estate as defined in Section 75-1-201; (b) the decedent’s augmented estate as defined in Section 75-2-203; and (c) that part of other real or personal property in which the decedent had a legal interest at the time of death including assets conveyed to a survivor, heir, or assign of the decedent through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”).

92 See Wyo. Stat. Ann. § 42-4-206 (“‘Estate’ shall include all real and personal property and other assets included within the individual’s estate, as defined for purposes of this state’s probate law, and includes any other real and personal property and other assets in which the individual had any legal title or interest at the time of death to the extent of that interest, including such assets conveyed to a survivor, heir or assign of the deceased individual through joint tenancy, tenancy in common, survivorship life estate, living trust or other arrangement.”).

93 Mont. Code Ann. § 53-6-167(5)(a) (“For purposes of this section, property of a deceased recipient received by distribution or survival is any real or personal property or other assets in which the recipient had any right, title, or interest immediately prior to the time of death, including but not limited to assets passing to one or more survivors, heirs, assignees, or beneficiaries of the deceased recipient through joint tenancy, tenancy in common, right of survivorship, conveyance by the recipient subject to life estate, living trust, or other arrangement.”).

94 Kan. Stat. Ann. § 39-709(g)(3)(B) (2018) (“The medical assistance estate is defined as including all real and personal property and other assets in which the deceased individual had any legal title or interest immediately before or at the time of death to the extent of that interest or title. The medical assistance estate includes, without limitation assets conveyed to a survivor, heir or assign of the deceased recipient through joint tenancy, tenancy in common, survivorship, transfer-on-death deed, payable-on-death contract, life estate, trust, annuities or similar arrangement.”).

95 Wash. Rev. Code § 43.20B.080.

96 Id. at § 11.02.005(10) (emphasis added). Washington Revised Code § 11.11.010(7) provides, “(a) ‘Nonprobate asset’ means a nonprobate asset within the meaning of RCW 11.02.005, but excluding the following: (i) A right or interest in real property passing under a joint tenancy with right of survivorship; (ii) A deed or conveyance for which possession has been postponed until the death of the owner; (iii) A transfer on death deed; (iv) A right or interest passing under a community property agreement; and (v) An individual retirement account or bond.”

97 Ind. Code § 12-15-9-0.5 (2018) (“‘[E]state’ includes (1) all real and personal property and other assets included within an individual’s probate estate; (2) any interest in real property owned by the individual at the time of death that was conveyed to the individual’s survivor through joint tenancy with right of survivorship, … ; (3) any real or personal property conveyed through a nonprobate transfer; and (4) any sum due after June 30, 2005, to a person after the death of a Medicaid recipient that is under the terms of an annuity contract purchased after May 1, 2005, with the assets of the Medicaid recipient.”).

98 Id. at § 32-17-13-1.

99 Me. Rev. Stat. tit. 22, § 14.2-I (F)(2) (“Any other real and personal property and other assets in which the recipient had any legal interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the deceased recipient through tenancy in common, survivorship, life estate, living trust, joint tenancy in personal property or other arrangement but not including joint tenancy in real property.”).

100 See Rudowitz, supra n. 3.

About the Author

Kristine J. Williams graduated summa cum laude from Mitchell Hamline School of Law in St. Paul, Minnesota, where she served as assistant editor of the William Mitchell Law Review. Prior to relocating to the Fox Valley area in Wisconsin, Williams was a sole practitioner in Hartland, Wisconsin. She currently practices elder law at Remley & Sensenbrenner in Neenah, Wisconsin.