[WSBAPT] Estate Recovery against Joint Tenancy Interest from before July 2005

[Forrest Carlson]

Although nobody responded to this, I discovered an answer and will share 
it with the list for posterity:

I put in a call to the Estate Recovery department at the Office of 
Financial Recovery of DSHS. The representative told me that DSHS's 
position on WAC 182-527-2746(4)(c) is that DSHS will make no effort to 
recover Medicaid payments against property that was held by the decedent 
at the time of death as JTWROS if the joint tenancy had existed 
continuously since before July 1, 2005. This is true even if the estate 
is otherwise insolvent (as one would expect it to be in a Medicaid 
recovery scenario), which means DSHS will not pursue the JTWROS asset in 
its capacity as an unsecured creditor -- at least, according to the 
representative I talked to.

I have been unable to find any case, ruling, or even discussion on this 
specific question in any of the state deskbooks or practice materials.

Forrest Carlson
Assemble Law Group, PLLC
www.assemblelaw.com <https://www.assemblelaw.com>
(206) 631-9575

On 3/30/2017 2:07 PM, Forrest Carlson wrote:
> Greetings list mates,
>
> Can any of you provide any guidance on this estate recovery scenario?
>
> The hypothetical elderly, unmarried client (HC) has qualified for and 
> is receiving Medicaid benefits that will subject her estate to estate 
> recovery. HC's home is an exempt asset held as JTWROS with her adult 
> son. Importantly (or perhaps not), HC acquired the interest in the 
> home several decades ago (long before the critical date of July 1, 
> 2005). Assume the son is not a caregiver, blind, disabled, or 
> otherwise eligible to receive the home by inter vivos gift without 
> risking Medicaid ineligibility. Other than the home, HC's estate is 
> expected to have no assets having more than nominal value.
>
> I understand the general rule is that DSHS can use a lien to recover 
> against nonprobate assets, including JTWROS property. However, WAC 
> 182-527-2746(4)(c) says that the agency "may not enforce a lien" 
> against JTWROS property if the decedent's right in the property vested 
> before July 1, 2005. This looks like a blanket prohibition against 
> enforcing a lien against the property HC will have held JTWROS.
>
> Is this a complete bar to DSHS's recovery against the JTWROS property, 
> or does it simply mean that DSHS's claim against the estate is 
> unsecured? I have too little experience to know whether DSHS's 
> authority to recover Medicaid payments is limited to enforcing liens 
> or whether it could simply treat the debt like any other unsecured 
> creditor's claim against the estate.
>
> Thank you for any guidance.
>
> Forrest Carlson
> Assemble Law Group, PLLC
> www.assemblelaw.com <https://www.assemblelaw.com>
> (206) 631-9575
>
>
>
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