Can Medicaid go after the profit from selling our house that is in my name?

So, MsPat; you are talking to a lady who is trying not to have to live on the streets in order to provide her husband with AL/NH care, which he needs.

You are NOT talking to an adult child who is trying to save their inheritance.

Two VERY different situations. I'm sorry for your mistake.

I am sorry to hear that so many will do anything to not pay for a loved ones care in an assisted living facility. I do not want to overpay either but why do we think it's OK to hide assets so the taxpayers take the hit?

Sorry if I am repeating, just glanced at posts. The first thing I noticed was the house was turned over 3yrs ago. Look back for Medicaid is five years. So, I wouldn't do anything until u talk to a lawyer.

DigitalB - ahhhh ABLE accounts, we looked into it as I have a cousin with 1950’s era polio. Able is great BUT is designed to work for those who:
- have a disability or blindness that occurred prior to age 26
- receives SSI or SSDI based on it
- or self-certifies they qualify on SSA “compassionate allowances conditions” list with qualifying disability diagnosis with code written by a physician. The “compassionate” list is long and includes Lewy Body Dementia & FTD & early onset dementia (before 65). BUT devil is in the details..... for early onset they have to have the medical chart with years of documentation done before age 65 to support it - like 9 different ICD codes, MMSE studies over time, etc. There’s an outside adjudicator who reviews & determines IF covered.

For most of us, dealing with elder parents with general aging and dementia ABLE is of no use as they don’t qualify for compassionate list.

My mom had Lewy, and entered a NH in her 90’s when diagnosed with pretty intense testing done at a university teaching hospital & health science center so could have gotten solid documentation. But to me doing ABLE would make no sense as the max annually is 14k. Plus Medicaid requires their monthly income copay to NH & so only a tiny $ 60 a mo as usable $ to add to ABLE then when she died whatever $ left state as beneficiary. Now IF she was 60 with Lewy & needing a NH in another 3 - 6 years, then it could maybe possibly could make sense.

I’m actually somewhat concerned that ABLE’s being touted by “advisors” as a way to invest that income stream of SS$$ plus 14k annually & it’s on you “self-certify”; that accounts are being done that really won’t stand up to scrutiny. If you self-certify and the adjudicator determines you don’t qualify, it’s on you & not Fidelity (they advertise doing these).

Also for my cousin, he had a SNT set up by his parents with his brother & myself as trustees. Now he is totally competent, his issues are physical as he has secondary polio degeneration, so he does whatever on his own w/Trust $. We looked into AbLE, it seemed ideally great if your under 40 & can for sure put ideally the 14k annual max into it for 7 consecutive years as it maxes out at 100k. But he’s 70.5 this year so defund SNT is best. Each persons situation is unique....

Another option if you sell the house is just to go ahead and rent. That way, they can't go after your house later since you no longer own it. As for the proceeds, I would get me an able account and sock all the money away in there but move all of your money out of state or even offshore if possible. One smart move is to make your preneed with part of those proceeds though. That way, the preneed is already paid for but make the funeral home the policy owner so Medicaid can't go after it. All you do is pay on the policy through an insurance company that handles preneed policies. What I would do though regarding your able account is make sure Medicaid can't touch it after he dies. Make sure you're constantly using something out of it if you accrued very much. I would use some of the money and treat the both of you. Be careful where you open your able account though, some of them charge exorbitant fees. Some of them charge right around 10 or $12, Ohio $2.50 but Tennessee is free and allows up to around $14,000 to be deposited within I think it's a year but a little over 300,000 over the life of the account whereas Florida allows a little over 400,000 over the life of their able accounts. If your husband will need Medicaid down the road, you want to act now and start selling any possible countable assets. What I would do though since Medicaid has been known to have about a five-year look back, I would try and wait about five years after selling off your home and other assets necessary. You really don't have to spend down all of your money, make sure you have enough to carry you through and take care of yourself when your husband goes to the Alzheimer's wing. If they can, nursing homes will drain you dry so make sure to make wise decisions on your own future. Paying out-of-pocket for his care will quickly drain you both so be careful

Regarding Lady Bird Deed, it is NOT a quit claim deed.
Lady Bird is an Enhanced Benefit Life Estate. It’s a way to pass after death ownership outside of probate & the property stays in the name of the elder owner during their lifetime. If I’m not mistaken, ONLY 6 states even allow “Lady” aka Enhanced Benefit Deed. States that are legislatively very pro-property rights.... like state that doesn’t allow judgement or lien to ever be placed on your home (FL, TX).

There are a couple of folks on this site who have them. Lady Bird done by atty way in advance of Medicaid application. Done for estate planning with Medicaid asset retention as a bonus. When elder died, the old dpoa still got MERP NOI (notice of intent) packet to deal with (sent by the outside contractor hired by their states Medicaid program). Atty needed to deal with contractor and get paperwork done correctly at the courthouse so property sold with no lingering clouds on the title. Title companies are more & more aware of MERP and issues it poses for clean title. What seems to be happening is that unless seller (really the estate as their dead) has a release of Medicaid lien / claim document from the state or has probate judge orders for property transfer as per will, the property is likely saddled with a medicaid lien or claim. To sell it, to me, for most after death property something is going to have to be worked out with MERP. Really Lady, probate, etc. is not a DIY.

As an aside on this, elders transferring their fully owned home into a Life Estate used to be a sure fire way around estate recovery as LE done outside of probate. But some states (NY) now attempt recovery for LE or view revocable LE to be non exempt asset for Medicaid.

Cetude, please note - An enhanced life estate deed is a special type of deed recognized by common law in three states: Florida, Michigan and Texas. Also called a "Lady Bird" deed, it can be used to transfer ownership of real estate outside of probate to a beneficiary named in the deed. Worried has not told anyone what state she lives in - this is why having a really good attorney that is experienced in the Medicaid laws in your state is so important. 24/7 home based care is available in New York from Medicaid. NOT in Texas and there is a very long waiting list. Any time you have any type of assets or spouse, you need professional advice and evaluate current position, plan for future, and understand that use of Medicaid is not likely to leave anything for heirs if you live under its assistance very long.

Agree that Medicaid is there to help the indigent afford LTC. We were very grateful to have in for my MIL who had only her husband's railroad retirement pension. When she needed nursing home, we sold her house and furnishings and used that money for the NH first, then Medicaid kicked in and paid the fees until she died 2 years later. Possibly when your husband was first diagnosed with dementia, you could have gotten a divorce and divvied up the property then. There's books written on how to do that! I have a friend who bought a new condo in her name only and is spending all of her husband's money on furniture and home remodeling, thinking that Medicaid won't come after that. I don't know if that's true or not.

Cetude, you seem not to understand what Medicaid is. Medicaid is not "greedy." It does not "get their grips on assets." Medicaid is not a charity or a freebie. Rather, Medicaid is a program for indigent persons.
If a person is not indigent, a person pays for his or her care. Like it or not.
Medicaid policy prevents the impoverishment of a spouse. This is actually sensible as well as gracious. It is a lifeline, a godsend, not a pickpocket.

The only way Medicaid can't get their greedy hands into the estate is to either avoid Medicaid OR have the house transferred by means of "ladybird quick deed" which is different than a standard quick deed...and depending on the laws of your state. A Ladybird quick deed will NOT affect ownership of the house but your name is simply added on it so when the original owner dies it automatically goes to you WITHOUT having to go through probate. You simply send the clerk of court a copy of the death certificate. You must see an eldercare attorney to make certain this is done correctly--DO NOT attempt to do this yourself under any circumstances.  If your name is already on the deed there should be no issue. It is probate Medicaid can get their grips on assets. Now as for selling it before he dies? GOOD LUCK with that. Just remember a person cannot have any more than $2,000 in the bank (depends on the state).  Definitely an eldercare attorney needs to be consulted.  There is also a five year "look back law".  If you husband is on Medicaid before that 5 year--Medicaid would have dinged you all for that.  When it comes to Medicaid legality you are walking on egg shells so tread carefully. 

Thank you all for the answers.

Worried, I'd be somewhat concerned that your estate planning atty that may be fabulous for just that... estate planning, but he's out of his lane when it comes to Medicaid planning. They are similar but very different legal & financial creatures. Specially when it comes to what estate recovery & MERP can / cannot do. I'd ask point blank how many MERP actions he has done and what exemption & exclusion strategies used & what % ended up going through probate. & ask for the PC case # (probate court is open records so anybody can access).

Estate planning not Medicaid planning. There is an expert on this site Gabriel Heiser, an atty, who has a book on this that is priceless as to how their different yet dovetail. You can order it but it's also at most public libraries. For CS situations, if it was me I'd get a NAELA level of elder law atty. not estate atty.

It's my understanding that if your married, all assets count for Medicaid. Moving casa into just your name doesn't remove it from the asset base for Medicaid as you all are married. Medicaid does NOT expect or require the CS - community spouse & that's you as your staying living in the community - to themselves become impoverished. Only hubs has to. Your home & a car are an exempt asset for your lifetime & whether or not MERP will come after that house to repay for hubs care depends on how your state does MERP. Your income does not count for hubs Medicaid, and this lil factoid be can be very VERY important.... more on this below.

Most states do not do recovery on surviving spouse. But state knows probability is that the spouse is themselves old & infirm & will enter a NH in near future, so house is getting sold & $ used as a spend-down.

To me, if your in a may/dec marriage or hubs has early onset dementia so he & you are both relatively young (not in 80's or 90's), you need to be lots more creative for planning. If your dependent on hubs monthly income to make ends meet, then your atty needs to work on getting you the max CSRA or MMNA & figuring out what it is so it's applied for simultaneously with hubs Medicaid application. Basically either takes $ from hubs monthly income & instead of that $ being paid to facility as hubs required SOC (share of cost in Medicaid speak, his monthly income paid to NH), it instead goes to you to enable you to live in your community. CSRA Income level varies by state. Like for TX. MMNA max is about $2800. So in theory if hubs income is $3200 a mo, & you get max MMNA, his SOC to NH is only $ 500 a mo. Think of it kinda like alimony for the nonNH spouse.

Has the atty or anybody mentioned your doing a SPIA? It's an annuity & normally I hate hate annuities as their so often sold to fearful elderly with outrageous commission structure paid to the insurance guy who sold it...... but a SPIA is a very unique creature. Your income is not a factor for hubs Medicaid. You as a CS are allowed about 118k in non-exempt assets also. Now what to do IF there's more than 118k??? Say 250k, less 2k as hubs Medicaid asset max & 118k as your asset max, then the remaining 130k becomes the SPIA. The SPIA pays you (you not hubs) an income each month. Again your income NOT a factor for his Medicaid. SPIA has to be done just right, meet certain actuarial tables and it should be structured so that your taxes aren't terribly affected & has to be Medicaid compliant. It's speciality underwriting, not done by any insurance guy. Really a good NAELA atty will have FAs they work with to do this. It has to be in place & funds moved before hubs Medicaid application submitted. If you want to downsize, sell big house & doing this ends up with you having $$, your doing a SPIA with the overage $$ could totally make sense. You might even want to have a mortgage too, so you capture CSRA/MMNA. The devil in in the details & you really need legal that understands how Medicaid runs and can present options to you. To me it means NAELA level of elder law atty.

WS, remember - Medicaid won't "go after" the profit from selling your house. The program doesn't take money from people while they are living, it files liens against the estate of a person once they have passed away. But profit from a sale, depending on how your state's Medicaid system does asset allocation in a marriage, may disqualify your husband from receiving assistance from medicaid for health and custodial care if your marital assets are above a certain amount. Depending on your state, there are different ways to legally put the money into different types of accounts, etc. Not a do-it-yourself project. If you buy another house with the money from the sale, the new house will be an exempt asset for Medicaid. Again, the fact that you are married, pre-nup or not, will be the deciding factor in Medicaid qualification in many states. Your lawyer is the best one to determine what your specific situation is. The answer - no one will take your money away from profit on sale. But profit may disqualify your husband from future benefits if your assets are above limits.

No. But at the cost of the AL, he won't be far from applying for Medicaid.

Is your husband currently on Medicaid?