For Medicaid applicants and families, losing their home is perhaps their biggest fear. Will they be forced to sell their home if their loved one goes on Medicaid? Will the proceeds go to the nursing home? If there is a well spouse, where will he/she go? And, what happens to the home after the applicant passes away? As a result, people frequently “quit-claim” their property to relatives in an attempt to gain Medicaid eligibility or to avoid Medicaid “taking” their home only to learn later that they could have kept their primary residence and by transferring it to a relative they triggered a period of Medicaid ineligibility! Read more about the pitfalls of a quit-claim deed here.

It is not surprising that many people are confused and have misconceptions about the rules related to primary residences in Florida and rules for obtaining Florida Medicaid benefits to pay for nursing home costs. The Medicaid program is vast, and its rules are complex and differ from state to state. Before clients seek our help, they have often spent many hours worrying about potentially losing the family home. And, that's in addition to worrying about the family member who needs care and worrying about losing their life savings to pay for nursing home costs. A primary concern for clients we've counseled is that once the Medicaid recipient passes away, the state will take their home and other assets…a process called Medicaid recovery. It is true that federal law requires each state to recover funds expended on behalf of the Medicaid benefits recipient. However, with the guidance of our law firm, there is nothing to fear. To understand why, let's look at the mechanics of the Medicaid recovery program, and how it actually applies to most people.

Understandably, the possibility of losing one's house is frightening. The good news is that in Florida, the homestead residence is an exempt asset in most cases when a Medicaid applicant obtains Medicaid. You do not need to and should not transfer a Medicaid applicant's home to a family member in order to qualify for Medicaid benefits. For Medicaid purposes, your Florida homestead is not counted among your assets so long as you have less than $603,000 in equity in it. Moreover, the home is also exempt from Medicaid recovery so long as the homestead is left to a “constitutional heir-at-law.” A constitutional heir at law could be your spouse, child, grandchild, cousin, niece, nephew or sibling. As long as you do not leave it to a non-relative (note that a charity is also defined as a non-relative), it will not be recovered upon the death of the Medicaid recipient.

Our firm will ensure that the applicant's estate plan is properly structured to protect the homestead from Medicaid recovery which may include that the applicant's last will and testament NOT direct the homestead be sold and the proceeds divided among the children. Doing so means that the home is not left to the constitutional heirs at law; it effectively sells the property, which will trigger Medicaid recovery of the sale proceeds upon the Medicaid recipient's passing.

Don't worry that you will lose everything if you family member qualifies for Medicaid benefits or after the recipient passes away. Also do not assume that you are not eligible, or that you cannot be made eligible. Your conclusions may be based on incorrect or incomplete information. We are here to help; call our office at 407-847-5151 to schedule a consultation with one of our experienced Elder Law attorneys.