I am disable and my ex-wife is disabled. Our divorce decree was that we would sell the broken-down home and divide any proceeds. It has been on the market for 4 years with no offers. Now she needs to move into a nursing home. Will I have to move our of my home? I

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The home will be considered an exempt asset, although the exact rules on how to do this and how long the exemption lasts will vary from state to state.In most states, your wife will have to say that she "intends to return" to the home, even if that's unlikely. A few states will count the home once again after 6 months, if it appears she will not be able to move back there, based on the determination of a physician.

In any case, a piece of real estate that cannot be sold also cannot be considered a "countable asset" for Medicaid purposes. They only count assets that can be liquidated, i.e., sold and turned into cash.
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You need to talk to an Elder Care Lawyer right now! Even if you can't afford one, DO IT! It may mean the difference between having a roof over your head or not. Some states do make the "heirs" sell the parent's home and repay Medicaid for the debt. However, most states do not do this if this is the only home for the surviving spouse. However, the recent divorce and decree in the divorce papers makes this a bit sticky. Also, do the state or states you and your ex-wife are residing in have "filial responsibility laws" on the books? If yes, then your ex-wife's children, should she have any, would also be held responsible for your ex-wife's elder care debts. Here is a list of states with "Filial Responsibility Laws" currently on the books (keep in mind, more and more states are adding these laws every month and an updated list has not yet been published):

The New Old Age
States With Filial Responsibility Laws
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.
To look up the actual language of the statutes, here are the
1. Alaska Stat. 25.20.030, 47.25.230 (Michie 2000)
2. Arkansas Code Ann. 20-47-106 (Michie 1991)
3. California Fam. Code 4400, 4401, 4403, 4410-4414 (West 1994),
California Penal Code 270c (West 1999), California Welf. & Inst.
Code 12350 (West Supp. 2001)
4. Connecticut Gen. Stat. Ann. 46b-215, 53-304 (West Supp. 2001)
5. Delaware Code Ann. tit. 13, 503 (1999)
6. Georgia Code Ann. 36-12-3 (2000)
7. Idaho Code 32-1002 (Michie 1996)
8. Indiana Code Ann. 31-16-17-1 to 31-16-17-7 (West 1997); Indiana
Code Ann. 35-46-1-7 (West 1998)
9. Iowa Code Ann. 252.1, 252.2, 252.5, 252.6, 252.13 (West 2000)
10. Kentucky Rev. Stat. Ann. 530.050 (Banks-Baldwin 1999)
11. Louisiana Rev. Stat. Ann. 4731 (West 1998)
12. Maryland Code Ann., Fam. Law 13-101, 13-102, 13-103, 13-109
13. Massachusetts Gen. Laws Ann. ch. 273, 20 (West 1990)
14. Mississippi Code Ann. 43-31-25 (2000)
15. Montana Code Ann. 40-6-214, 40-6-301 (2000)
16. Nevada Rev. Stat. Ann. 428.070 (Michie 2000);
Nev. Rev. Stat. Ann. 439B.310 (Michie 2000)
17. New Hampshire Rev. Stat. Ann. 167:2 (1994)
18. New Jersey Stat. Ann. 44:4-100 to 44:4-102, 44:1-139 to 44:1-
141 (West 1993)
19. North Carolina Gen. Stat. 14-326.1 (1999)
20. North Dakota Cent. Code 14-09-10 (1997)
21. Ohio Rev. Code Ann. 2919.21 (Anderson 1999)
22. Oregon Rev. Stat. 109.010 (1990)
23. 62 Pennsylvania Cons. Stat. 1973 (1996)
24. Rhode Island Gen. Laws 15-10-1 to 15-10-7 (2000); R.I. Gen.
Laws 40-5-13 to 40-5-18 (1997)
25. South Dakota Codified Laws 25-7-28 (Michie 1999)
26. Tennessee Code Ann. 71-5-115 (1995), Tenn. Code Ann. 71-5-
103 (Supp. 2000)27. Utah Code Ann. 17-14-2 (1999)
28. Vermont Stat. Ann. tit. 15, 202-03 (1989)
29. Virginia Code Ann. 20-88 (Michie 2000)
30. West Virginia Code 9-5-9 (1998).
State laws vary. owever, law student Shannon Edelstone, in her
award-winning essay (cited below), studied all of the state laws and
found that most agree that children have a duty to provide
necessities for parents who cannot do so for themselves. The states'
legislation also gives guidelines to the courts, telling judges to use a
number of factors when weighing the adult child's ability to pay
against the indigent parent's needs. Judges, accordingly, have
considered such variables as the adult child's financing of their
child's college education, as well as his/her personal needs for
savings and retirement.
Sources: Filial Responsibility: Can the Legal Duty to Support Our
Parents Be Effectively Enforced? by Shannon Frank Edelstone,
appearing in the Fall 2002 issue of the American Bar Association's
Family Law Quarterly, 36 Fam. L.Q. 501 (2002).
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Your home has been on the market for 4 YEARS???? Clearly, you have overpriced your home. Seriously.
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I just received a letter from Medi-Cal (Medicaid) and if you own a home and you are receiving benefits from them, when you die your home will be taken and sold to pay them back, UNLESS your spouse is still alive or you have a disabled child that meets their requirements. In California it looks like they can come in and pretty much take everything including banks accounts that you had with someone else and trusts.
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That is your residence, and an eldercare attorney is necessary to help now! I think it would take a county sheriff to pull you out; where else could you go to live?! I just does not make sense to move to nowhere!!
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Unikorn - what your situation is all about has nothing to do with filial laws. Esq. Heiser is really giving you invaluable insight on all this.

What you are dealing with is MERP - Medicaid Estate Recovery (or Recoup) Program (or Policy). MERP is required by the feds to the states, in order for the states to get Medicaid funding. MERP is all about the state recovering some of the significant costs it spends on the Medicaid program. If the Medicaid recipient has a home it is an exempt asset during their lifetime. But upon death, the home no longer has that exemption. There are many, many exemptions from MERP (like caregiver exemption, maintenance on unoccupied property, etc), BUT the exemption(s) have to be filed with MERP as per your states program. For my mom's Medicaid application, the acknowledgement of MERP was pretty clear and in addition it is included in her annual recertification for Medicaid. If you all don't want the house to be an issue, then don't apply for Medicaid. But if you do, then you have to be in compliance for the requirements....even those after death.

All states must have a MERP system in place. How it is done is very much dependent on state law on death, probate, estates and property. Some states, like TX & FL, are very much written to protect a property homeowner from creditors - like in TX a credit card judgement cannot do a lien on your primary residence. They can garnish wages but nothing on the home. Other states not so and MERP can be done as a lein on your property. Which means that until, the MERP lein is lifted there can never be a clean title issued. You are pretty much toast on selling the property in most cases. How probate is done is also very important - like TX is a level of claim probate state. So MERP can NOT be a lein on the property but only enter as a Class 7 claim. That means Class 1 - 6 get paid first and foremost. Now MERP still happens in TX but a lower level because of this. Also TX allows for muniment of title instead of full probate which affects the dynamics of what MERP can do. All this stuff is pretty detailed and really you need a good estate or elder law attorney to advise you. I've been executrix twice (1 simple & 1 we ran out to the full 4 years and had foreign will issues) and am pretty OCD on dealing with probate and really even with all that, you need a probate attorney imho.

Filial is very old-school English law and rarely used. The scary story about what happened in PA was primarily about the NH residents child who did not do the required documentation needed for Medicaid application. The NH has an expectation to be paid and if you signed the contract than you deal with the fall-out.
The NH does not have to take the applicant as Medicaid pending, they can if they choose to. My mom's TX NH (both her first one and her current one) does their own review of the application to determine IF they will take them Medicaid pending. If they get the vibe that there will be an issue, they can enforce the private pay contract clause. Most do. I would image that is what happened in Pittas.
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Didn't understand the MERP, so thanks for that info! I guess though, either way, Filial or MERP, the heirs are responsible for the sale of the home and the repayment to Medicaid. In all the years I dealt with Mom's doctors, insurance, home health, wound care, hospital liability (they were responsible for letting her get the bedsores so I made them pay for the treatment rather than sue them) and all the other issues that arose over the 25+ years she was sick, the MERP was never mentioned EVER. I just want children of elderly parents to know that if the parent needs long term healthcare, it could ruin them financially if they make the same mistakes I did. I didn't hire an Elder Care Attorney and ended up playing catch-up when she died. So, I can't stress it enough, that an Elder Care Attorney is the one thing a child can't afford NOT to hire. Thanks again for the help!
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I just want children of elderly parents to know that if the parent needs long term healthcare, it could ruin them financially if they make the same mistakes I did. The action to do ASAP is to hire an Elder Care Case Manager like my family did before waiting too long to decided on a care option. Home care is just toooooo expensive; put parents in a board-and-care like I did for my Mom!
I didn't hire an Elder Care Attorney and ended up playing catch-up when she died. So, I can't stress it enough, that an Elder Care Attorney is the one thing a child can't afford NOT to hire. The elder should have set up a trust, health care directive and POA with an attorney long before help was needed. I had 4 1/2 years to help my mother plan and a solid family to help me out also!
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the tool shed is probably in better repair so yea, vacate the dump. i like to kid, forgive me or not..
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Re K Gabriel Heiser, - Mom had NOTHING except a house with a HUGE mortgage on it as in 90% of it's $55K value (the loan was used to help pay for her medical bills that shocker Medicaid did not cover such as catheters, bladder bags, wound care, bandages, etc. - she got three bedsores in hospital after hip surgery while recovering in their rehab) yet Medicaid in Tennessee DEMANDED I sell Mom's home to pay Medicaid back for the six months she spent in a nursing home. I explained the mortgage and that even if I got the entire amount the house was worth, what was left after the mortgage was paid off would not be enough to cover the bill Medicaid sent me. I was informed that I would be held accountable (I was POA/Executor of her basically non-existent estate and no I DID NOT sign any document stating I would be responsible for any debts she incurred that Medicaid did not cover nor did Mom. When Mom went into the Nursing Home, they knew she had Medicaid only and accepted her as such). The state of Tennessee DID NOT send ANY documentation that said Mom's house would have to be sold so Medicaid could be paid back. I was planning on selling my larger house and moving into Mom's (my husband, son and I didn't need the larger house we'd bought so Mom could live with us) when I was informed about selling the house. We were prepared to go to court to battle with Medicaid and provided our attorney documentation proving Mom needed 24/7/365 care for the previous ten years that I quit my job to provide. Medicaid's attorney told Medicaid they would lose in court and Medicaid sent me a letter stating that even though they didn't agree with their attorney, they were withdrawing their claim on Mom's mortgaged estate. Then, six months later, I received a second letter from Medicaid stating they were reopening the decision and filed court papers. I had to once again go to my attorney, resend them all the documentation and I was told by Medicaid that "I was a real low-life to take out a mortgage on Mom's house, what kind of person was I?" I informed the woman at Medicaid that "I was the type to quit my job, give up my life, and put my family in debt in order to care for my Mom. But, I thought it only fair that Mom's house be mortgaged to help pay the bills." (We just recently finished paying off the mortgage.) I also reported this woman and was later called and told she lost her job for her abuse. The court found in MY favor informing Medicaid that TN Medicaid would have had to kept Mom for the same length of time before they had the right to demand payment. If I hadn't had Mom's doctor and 20 witnesses swearing that I had kept her out of the Nursing Home for all those years, I would have had to sell Mom's house and then be held responsible for the remaining amount the slim profits would have covered. This has been going on in the state of Tennessee for more than 20 YEARS! TN does not "TAKE" the house, but they most certainly DEMAND that the HEIRS sell the house (whether it's mortgaged, free and clear, or willed to someone) to pay back the debt to Medicaid and if it doesn't cover the debt, they DO harass and make DEMANDS. The ONLY way in the state of TN to prevent the sell of the house is if there is a living spouse still in the home or a disabled child living there. Otherwise, in the state of TN, you can either sell the house or repay the debt some other way. So, I'm not sure what Medicaid laws you are referring to, but I'm talking about the horror stories of Medicaid in TN and I can't imagine TN is the only state doing that. And I know for a fact that 29 states have antiquated Filial Responsibility Laws on the books and that many more are either dusting off the existing ones or looking to write them. Pennsylvania vs. Pittas is scary in the fact that Medicaid had been applied for and was in the works, yet the courts found Mr. Pittas responsible for the entire $93K for his mother's nursing home bill, yet didn't go after any of Mr. Pittas' siblings.
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