A technical Article for Maryland Elder Law Practitioners
Soon after the opinion was issued, this writer posted an article discussing the case, Schoukroun v. Karsenty (Md. App. December 11, 2007), which article you may access by clicking on the case name in this sentence. That article suggests that the court-created augmented estate rule set forth in that opinion might have implications in the Medicaid planning context.
There are other rules that are important for Elder Law Practitioners to bear in mind when considering the implications of Schoukroun.
42 U.S.C. § 1396p, subsection (4) provides the statutory definition of “estate” for recovery purposes under the Federal Medicaid program, as follows:
(4) For purposes of this subsection, the term “estate”, with respect to a deceased individual—
(A) shall include all real and personal property and other assets included within the individual’s estate, as defined for purposes of State probate law; and
(B) may include, at the option of the State . . . any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.
Moreover, 42 U.S.C. § 1396p(b)(2) allows for recovery of Medicaid benefits from the estate of a deceased Medicaid recipient only after the death of the Medicaid recipient’s spouse (among other circumstances).
In circumstances where a state may seek recovery from assets passing outside of the decedent’s probate estate for Medicaid purposes, the question arises whether the state would have a right to track the spouse’s assets after the death of the Medicaid recipient in order ultimately to collect from the spouse’s estate.
This issue is addressed in a recent Missouri court case, In the Estate of: Raymond V. Shuh, Deceased, Mo.App. ED89849 (Jan. 29, 2008). That case, the opinion for which you may access by clicking on the case name in this paragraph, reviews the applicable Federal and State rules, and concludes that the Missouri Medicaid program may not ultimately recover from the surviving spouse’s estate for Medicaid benefits paid for the benefit of the first spouse to die.