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

[Forrest Carlson]

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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