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

[Thomas Gates]

Thanks for sharing!

Tom

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On Mon, Apr 3, 2017 at 12:26 PM, Forrest Carlson <forrest at forrestcarlson.com
> wrote:

> 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
> (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
> (206) 631-9575
>
>
>
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