Mom and her husband are separated and live in separate homes. Can MERP force sale of the home that she occupies if it is community property?

Asked by

Texas. Advise need on asset protection.

Answers 1 to 6 of 6
Top Answer
Probably not. But they can attach a lien against the house and cause repayment after Mom dies. Attorney advice is VITAL
There could be another more immediate issue.....
medicaid allows for their home / property with homestead exemption to be considered an exempt asset. Medicaid also allows for a car to be an exempt asset. A home & A car. If your folks are married, Medicaid considers them a couple for all assets. TX is a community property state, so all assets joint unless some definitive legal already done & filed at the courthouse.

So I’d bet 1 of those homes likely to be nonexempt asset for Medicaid. ASAP PLEASE Please please make an appt with an elder law atty for your folks. I’d get one that is NAELA as couples planning is much more complex.

Non-exempt assets for couples are limited to around 119k for the community spouse (the CS is the one still living in the “community”). Over 119k in assets then not eligible for Medicaid. A second home will totally put them beyond Medicaid eligibility. 2nd home can’t be made into something medicaid compliant like a SPIA can be. The 2nd Property is gonna surface one way or another & be noted by Medicaid. Either within initial application or at annual renewal. Assets have to be disclosed too. On my mom’s TX Medicaid form, it clearly states that if you realize you left something out you have like 15 days to notify Medicaid or be personally fined. You the dpoa who signs off on the application or renewal, not the elder. Really you don’t want to find them after the move to a NH to end up Medicaid ineligible. Meet with an atty and let them come up with options for your folks. ASAP.

Tax Assessors send out an annual Homestead Exemption receipt or postcard. If they aren’t legally separated for however needed to do validity for TX homestead exemption AND they got two homestead exemptions, tax assessor can challenge current & all prior exemptions. For the assessor, placing fines, interest, a lien, etc.  is a total win as either owner/family will pay or property can be sold at tax sale.You need to see if there could be any assessor issues as IF this is happening as it’s going to be very very VERY expensive to correct. 
As an aside, just got our HE and any changes have to be filed between Jan 1 & April 1 and “Failure to update your application may result in a fine of up to $5,000 or two years imprisonment and the loss of your homestead”.

Good luck with the atty.
Also Medicaid is really not in the real estate business. They can’t force your parents to sell a home. But Medicaid can find them ineligible for any Medicaid benefits as Medicaid is an “at need” program and that 2nd home - if viewed an an non exempt asset - keeps them from being “at need” as property can be sold with the proceeds of the sale used for their spend down. Then once impoverished they can be eligible for Medicaid.

Also Medicaid can make it difficult for property to continue to be owned.
Did anyone explain Medicaid copay or SOC (share of cost) requirements???Once in a facility on Medicaid, they are required to basically pay the NH all their monthly income (SS, pension, annuity payments) as the SOC. Now the parent still living at home - the Community Spouse - can put in a waiver diversion request to Medicaid to allow for some of that income to cover thier living expenses in a single home. But if the CS gets their own income, it could be enough to totally cover living expenses. So no waiver of the copay done.

If the CS themselves ends up going into a NH, then due to copay requirements, if they want to continue to keep the exempt asset home, then you or other family will need to pay all property costs (taxes, insurance, utilities, maintenance, etc) till beyond death and then whomever is executor deals with estate, MERP exemptions/ recovery & probate filing.

Avlara - Your all worried about the after death aspect of Medicaid. To me, you instead really need to figure out how to make the current 2 house asset situation work to make them eligible To begin with. That’s what an atty can help determine.
I would also strongly advise you to seek out a elder law/medicaid attorney. There is mention of asset limits in this thread. The limit for assets such as cash are not hard and fast. A attorney can petition to have them raised. For example, the spouse that's not on medicaid needs money to live on. Thus it can be petition to raise that limit much higher to allow for that.
Needto - for TX the MMNA for a CS has a max of almost $2900 mo. Which is really high for a states MMNA / CSRA. Although that sounds just fabulous, most CS’s are never ever going to be able to show to be at need for the max MMNA. It would have to be an MayDec marriage with the NH resident getting close to the $2700 limit in SS income with the CS a much much non working younger wife with legal dependents and a mortgage.

Average SS monthly is $1342. If the CS home is paid off & they have all senior breaks on homestead, no dependents, relatively healthy, so living expenses could be within their own income so no MMNA. Or they just need some MMNA. If I’m not mistaken, MMNA average for TX $600 in 2015.

CS situation way more complex, definitely needs savvy Atty.
As per request:
MMNA = monthly maintenance needs allowance / adjustment/ assessment
CSRA = community spouse resource allowance...
Perhaps think of these as kind of alimony for the not living in a facility spouse aka the Community Spouse. The CS is not themselves expected to become impoverished in order for the NH/AL spouse to be eligible for Medicaid. So the CS or thier atty can file for a diversion or a waiver to have some of the Medicaid spouses monthly income instead of paid in the required copay or SOC becomes instead MMNA / CSRA. Amount varies by state & can change each year.

Yeah couples Medicaid flat just complex.....

Share your answer

Please enter your Answer

Ask a Question

Reach thousands of elder care experts and family caregivers
Get answers in 10 minutes or less
Receive personalized caregiving advice and support