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

[MK Henderson]

Thank you for posting the answer Forrest.

On Mon, Apr 3, 2017 at 2:03 PM, Thomas Gates <tegatesesq at gmail.com> wrote:

> 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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-- 
Mary K. Henderson
Henderson Law Office PLLC
1123 Maple Ave SW, Suite 225
Renton, WA 98057
206-650-2472
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