Can the government force the sale of a house to pay for care if the property is no longer owned by the patient?

5 answers | Last updated: Aug 18, 2010
A fellow caregiver asked...

My mother-in-law will shortly need full nursing care in a residential home of some sort. She has some savings but her house was transferred into her daughter's and my husband's names eight years ago. Can the government force them to sell the property to pay for her care? I have heard conflicting stories regarding this. Thank you.

Expert Answers

Because the transfer of her house took place eight years ago, it will not affect your mother-in-law's eligibility for Medicaid coverage of nursing home care now (though her other savings will be considered when she applies for coverage). There are a couple of different reasons for this. First, since the transfer was so long ago, it seems that it was not done in order for her to qualify for Medicaid coverage. Since it seems that was not the purpose of the transfer, Medicaid cannot penalize it. Medicaid cannot penalize all transfers -- only those that are done with the intent to get around Medicaid eligibility and repayment rules.

In order to prevent transfers of property meant to get around Medicaid eligibility and repayment regulations, Medicaid has specific rules regarding such transfers. For transfers made before February 8, 2006 (which includes your mother-in-law's 2002 transfer), the rule is that Medicaid will look back 36 months from the date your mother-in-law applies for Medicaid and will examine transactions during that period. Your mother-in-law's transaction took place well before this 36-month look-back period, so the value of the house will not be considered by Medicaid as an asset belonging to your mother-in-law.

Finally, since the asset is no longer in your mother-in-law's name, Medicaid will have no right to force your husband or your sister to do anything with the house, or to pay any money out of the value of the house, for your mother's care. Nor will Medicaid have any right to make any claims against the house to repay Medicaid, after your mother-in-law dies, for the money it spends on her care.

Community Answers

A fellow caregiver answered...

Attorney Mathews, can you explain further the process that happens upon Medicaid application that would "look back" at a person's assets (e.g., to see if their home DID have transfer of ownership, I guess 'with intent' to pass on inheritance before Medicaid could get their hands on it)? How is that issue proved or disproved? I think an overview of this would help dispell some of those myths out there that have people worried or confused... Thanks.

Prn answered...

No, however, you should check to see if you live in one of the 26 states that have enacted the filial responsibility laws.

Filial responsibility laws create a statutory duty for adult children to financially support their parents who are unable to provide for themselves. The requirements vary from state to state, but typically the statutes obligate adult children to pay for necessities such as, food, clothing, shelter, and medical attention for their parents in financial need.

Sewfriendly51 answered...

How can I find a list of the states that have the filial responsibility laws? Thanks.

Prn answered...

States with filial responsibility laws are: Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, and West Virginia.