Please get an appointment with your nearest Area Agency on Aging for a legal consult--they are free. Make a list of "yes or no" type questions [then prepare for the lawyer to take each of those into more complicated discussion] questions.
There are numerous factors that could change outcomes for your property. ==What State you are in. ==Whether you owned your home "free and clear as a single person before you got married to this spouse. ==Certain legalities regarding surviving spouse keeping the house. ==Certain legalities of the immediate family being allowed to keep the house, particularly if it is also their home, and taking it would cause them to become dependent on the Welfare system… ==If there is a disabled child/adult child in the home being cared for by the surviving spouse, such that forcing them to lose the home would cause greater dependence on welfare, or, that the cared-for person would be caused to become more ill if forced to move, causing greater care-costs. ==Many States allow the surviving spouse to remain in the home, but once that surviving spouse dies, the kids don't get the house---it gets sold to pay off the State. ==Are the kids are paying monthly to the owner of the house, as in making the mortgage payment? --Then they they could file a lien on the property for the amount they have paid, which would take precedence over the State, since it was filed first, before State filed a lien. All liens must be satisfied once the property gets sold--those who filed firsts, generally get paid first; though unsure if that applies to State debts. ==IF the house is under a Reverse Mortgage, that entity owns it [main lien-holder], --there'd not likely be anything the kids could afford to buy back--evidently, even the State takes back-seat to Banks/Lenders in getting anything off a lien. ==Have you placed the house/property into a Living Trust that you own? In which case all your assets are owned by your Revocable Living Trust…A lawyer would need to answer how well that would protect your assets from your spouses debts, or from his State-level debts from getting Medicaid. BUT, a Living Trust does not necessarily protect your assets from your needs for Medicaid--you might have to spend it all down to get Medicaid for you.
Lots to consider.
Some States, like CA, IF "...person owns their home free and clear as a single person, BEFORE they marry", that property is NOT part of "joint property" for purposes of debts the non-owner spouse causes, nor in divorce or inheritance issues. ==Whether that applies to State debt accrued by a non-owner spouse, is a question. There can be loopholes either way--consult a lawyer!
Welfare laws are fairly similar from State to State---like a 5-yr. look-back, etc. for assets. States may differ when it comes to allowing a surviving spouse to keep their home. CA & WA, Welfare allows about $40,000 total assets for a couple, but only $2000 of assets for the sole survivor of a couple, in order to qualify for DSHS help. And, States administer the Federal program that assists Medicare recipients to get the Federal subsidy to pay for their Medicare monthly premium--States use same criteria to screen who gets that assistance, as for other Welfare recipients.
Some States "take" assets to repay the State for help given via Medicaid--that can be done in various ways. In some areas, that includes billing relatives. BUT… Welfare will likelyback-off, IF [spousal or immediate family impoverishment]--- the family can show just cause why DSHS should cease & desist billing family--or taking family assets [both personal and business] --it must be substantiated that if DSHS takes assets, the family would end up as DSHS recipients---most any State would do what they can to prevent more people being reduced to being welfare recipients.
Some families, the owner puts their assets into an LLC [limited liability corporation]. That removes those assets from "personal ownership"; they remain in control of the primary person; family must run it like a corporation--there has to be at least one annual meeting, and family members become "board of directors" and other various rules apply [record keeping, etc., as laid out in whatever rules are placed in how the LLC is structured]. This arrangement lasts until the "president" of the corporation dies, at which time the assets are divided among the Board of Directors….Not entirely sure how this needs set up, but know people who have done this successfully. This USUALLY protects those assets from the vagaries of individual financial issues, and Usually is used by those who have large enough amount of assets to make it worth it…BUT…it still may not be safe against the State or Feds --Gotta ask a lawyer!
No simple one answer, without knowing a raft of particulars. You need to talk with a lawyer.
Kathleen - isn't FL with a Lady Bird Deed? Then it's like you said & it falls outside of probate to get it transferred to your name. Is it coastal or within a coastal area? - if so look to see where it is on the new NFIP maps - the new rates for flood are going to be very expensive & will make the wind pool rates seem cheap.
Nancy7 - a Miller Trust doesn't have to do with property ownership, Miller has to do with with excess income & Medicaid eligibility. A Miller Trust is a way for the Medicaid applicant's qualified income to divert to the trust so that the applicant has a monthly income under your state's income limit for Medicaid. You - as the surviving spouse who is not on Medicaid & living in the home - are exempt from any Medicaid recovery / claim / lien on the house. If there is a surviving spouse still @ the house, no recovery.
Itsa - putting a home in a trust or a life estate and then applying for Medicaid (so that the actions are close in date) tends to be viewed as a Medicaid avoidance and will either outright decline Medicaid acceptance at worst or trigger a transfer penalty inquiry which keeps them from being eligible for any payments by Medicaid till the penalty is worked out. All real property transfers (land home autos) are recorded on the local level by the tax assessor and then dovetail into the state database. The transfer of ownership - whether by a quit claim, warranty deed, life estate, etc - will surface and the elder will face a transfer penalty on the action.
The trust because it doesn't go through probate, does avoid MERP. MERP is designed to be done through probate. But if they don't qualify for Medicaid to being with while they are alive, then that doesn't matter now, does it? Also there seems to be a newer issue with homes of those who go on Medicaid for NH, (even if the home is in a trust) in that the title companies are now requiring some sort of indemnity done for property sold by the elderly due to the whole issue of a MERP claim or lien clouding the title.
Maybe we should all become impoverished when we start collecting social security retirement by transferring all of our assets to our children at that time, wait about six years and then apply for medicaid. Then all the baby boomer elderly won't have to worry about MERP and the Federal and state governments will have to find another way to finance a much bloated Medicaid debt! I would not be surprised if a new law were enacted calling for a lifetime look back.
Make a list of "yes or no" type questions [then prepare for the lawyer to take each of those into more complicated discussion] questions.
There are numerous factors that could change outcomes for your property.
==What State you are in.
==Whether you owned your home "free and clear as a single person before you got married to this spouse.
==Certain legalities regarding surviving spouse keeping the house.
==Certain legalities of the immediate family being allowed to keep the house, particularly if it is also their home, and taking it would cause them to become dependent on the Welfare system…
==If there is a disabled child/adult child in the home being cared for by the surviving spouse, such that forcing them to lose the home would cause greater dependence on welfare, or, that the cared-for person would be caused to become more ill if forced to move, causing greater care-costs.
==Many States allow the surviving spouse to remain in the home, but once that surviving spouse dies, the kids don't get the house---it gets sold to pay off the State.
==Are the kids are paying monthly to the owner of the house, as in making the mortgage payment? --Then they they could file a lien on the property for the amount they have paid, which would take precedence over the State, since it was filed first, before State filed a lien. All liens must be satisfied once the property gets sold--those who filed firsts, generally get paid first; though unsure if that applies to State debts.
==IF the house is under a Reverse Mortgage, that entity owns it [main lien-holder], --there'd not likely be anything the kids could afford to buy back--evidently, even the State takes back-seat to Banks/Lenders in getting anything off a lien.
==Have you placed the house/property into a Living Trust that you own?
In which case all your assets are owned by your Revocable Living Trust…A lawyer would need to answer how well that would protect your assets from your spouses debts, or from his State-level debts from getting Medicaid.
BUT, a Living Trust does not necessarily protect your assets from your needs for Medicaid--you might have to spend it all down to get Medicaid for you.
Lots to consider.
Some States, like CA, IF "...person owns their home free and clear as a single person, BEFORE they marry", that property is NOT part of "joint property" for purposes of debts the non-owner spouse causes, nor in divorce or inheritance issues. ==Whether that applies to State debt accrued by a non-owner spouse, is a question.
There can be loopholes either way--consult a lawyer!
Welfare laws are fairly similar from State to State---like a 5-yr. look-back, etc. for assets.
States may differ when it comes to allowing a surviving spouse to keep their home.
CA & WA, Welfare allows about $40,000 total assets for a couple, but only $2000 of assets for the sole survivor of a couple, in order to qualify for DSHS help.
And, States administer the Federal program that assists Medicare recipients to get the Federal subsidy to pay for their Medicare monthly premium--States use same criteria to screen who gets that assistance, as for other Welfare recipients.
Some States "take" assets to repay the State for help given via Medicaid--that can be done in various ways.
In some areas, that includes billing relatives.
BUT…
Welfare will likelyback-off, IF [spousal or immediate family impoverishment]--- the family can show just cause why DSHS should cease & desist billing family--or taking family assets [both personal and business]
--it must be substantiated that if DSHS takes assets, the family would end up as DSHS recipients---most any State would do what they can to prevent more people being reduced to being welfare recipients.
Some families, the owner puts their assets into an LLC [limited liability corporation]. That removes those assets from "personal ownership"; they remain in control of the primary person; family must run it like a corporation--there has to be at least one annual meeting, and family members become "board of directors" and other various rules apply [record keeping, etc., as laid out in whatever rules are placed in how the LLC is structured].
This arrangement lasts until the "president" of the corporation dies, at which time the assets are divided among the Board of Directors….Not entirely sure how this needs set up, but know people who have done this successfully.
This USUALLY protects those assets from the vagaries of individual financial issues, and Usually is used by those who have large enough amount of assets to make it worth it…BUT…it still may not be safe against the State or Feds
--Gotta ask a lawyer!
No simple one answer, without knowing a raft of particulars.
You need to talk with a lawyer.
Nancy7 - a Miller Trust doesn't have to do with property ownership, Miller has to do with with excess income & Medicaid eligibility. A Miller Trust is a way for the Medicaid applicant's qualified income to divert to the trust so that the applicant has a monthly income under your state's income limit for Medicaid. You - as the surviving spouse who is not on Medicaid & living in the home - are exempt from any Medicaid recovery / claim / lien on the house. If there is a surviving spouse still @ the house, no recovery.
The trust because it doesn't go through probate, does avoid MERP. MERP is designed to be done through probate. But if they don't qualify for Medicaid to being with while they are alive, then that doesn't matter now, does it? Also there seems to be a newer issue with homes of those who go on Medicaid for NH, (even if the home is in a trust) in that the title companies are now requiring some sort of indemnity done for property sold by the elderly due to the whole issue of a MERP claim or lien clouding the title.