The Omnibus Budget Reconciliation Act of 1993 requires States to establish an Estate Recovery Unit. Florida has established a recovery unit. Its purpose is to file claims against the estates of deceased Medicaid recipients and recover money Medicaid paid on behalf of the recipient. The recovery unit has filed claims for as little as $34.00. Thus, if a Medicaid recipient dies in Florida with assets that pass via a will or intestate (without a will), the State of Florida Medicaid Recovery Unit will file a claim against the estate for the full amount of payments made on behalf of the individual during their lifetime. It is important to note that as of January 1, 2002, all estates are required to file a copy of the estate's inventory with the Florida Medicaid Recovery Unit.     What you should know is that under Florida law, your homestead is exempt from creditors claims (including the Medicaid Recovery Unit) if the homestead passes to your spouse or descendants as a homestead. There are some other exemptions under the Florida Probate Code. Consult with an elder law or wills, trusts and estates attorney for more information.

What does this mean to the Medicaid prospect? A common planning technique for married persons is to transfer all the assets into the well spouse's name. Under the Medicaid rules, inter-spousal transfers do not count as transfers for disqualification purposes. Then, the estate planning documents of the well spouse would leave everything to the couple's children. Under this plan, when the Medicaid recipient dies, there is no estate from which the Medicaid Recovery Unit can recover. Another change in the Florida Probate Code allows creditors to force a spouse to take their elective share (30%) even if they do not want it. It remains to be seen whether or not the Florida Recovery Units will invoke this legislative change and force Medicaid recipients to take an elective share from their deceased spouse's estate. If the recover units begin doing this, it could create funds that are recoverable by Medicaid.

Lastly, the Medicaid Estate Recovery Unit will not file a claim if any of the following are true: (1) there is a surviving spouse, (2) there is no probate to file the claim in, (3) the qualified income trust proceeds satisfy all Medicaid claims, or (4) the recipient was under the age of 55.

If you are a concerned relative or friend of an elderly person and need help with Estate Planning, Elder Law, or Medicaid and are in the Jacksonville, Orange Park, St. Augustine, Fernandina Beach or in the areas around Duval, St. Johns, Nassau, and Clay counties, we'd like to hear from you.

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