Mar
04
2013

Protect Your Home From a Medi-Cal Lien With a Reserved Life Estate

Medi-Cal can pay for your stay in a skilled nursing facility if you qualify. Under the state’s regulations, your home can be confirmed as an exempt asset in the Medi-Cal application. This means that you can keep your home, if you are otherwise qualified, and still receive Medi-Cal. This is true whether you are single or married. The concept is that you should not have to lose your home in order to receive this public benefit.

 The problem is that the state will want to recoup the payments it has made to the nursing home for your benefit, when you die. If your home is in your estate when you die, the state will put a lien on your home for the amount it has paid to the nursing home on your behalf. If the state has paid out $150,000 for you, they will put a lien on your home for that amount. When you die and your estate is settled, the state will be satisfied first for their lien of $150,000, and your beneficiaries will receive what is left. The state will not pursue a lien against a surviving spouse who still owns the home, but when she dies, the state’s lien will attach to the home and the state will recoup their payments at that time. 

There is a legal technique which is permitted under the regulations, which will allow you to protect your home against a Medi-Cal lien. It is called a “reserved life estate,” and your elder law attorney or senior law attorney can advise you in this regard. If the Medi-Cal applicant owns a home, we can transfer her interest in the home to her spouse, or to her children, for instance. A life estate in the home is reserved on the deed in favor of the Medi-Cal applicant. This means that the applicant owns the home for the rest of her life, and that her spouse or children own the remainder interest. The applicant is entitled to rents, issues and profits derived from the real estate. These interests are confirmed on the county record. When the Medi-Cal applicant dies, the home is not in her estate because her life interest disappears at the time of her death by operation of law, and her spouse or her children then receive the full interest in the property. Elder law planning and asset protection planning can be further pursued for the surviving spouse with your elder law attorney, to likewise protect her interest in the home.

Although under real estate law the home is not in the Medi-Cal applicant’s estate when she dies, so that a Medi-Cal lien cannot attach to the home, another benefit in using this technique is that under the IRS regulations, the reserved life estate interest should be recognized as keeping enough interest in her home in her estate, so that there should be a “step-up in basis” for capital gains purposes at the time of her death.  

If you have lost mental capacity at the time we would like to make a transfer of your interest in your home and reserve a life estate in your favor, we will need to look at the language and powers in your revocable living trust and financial durable power of attorney. If the powers are not there, and they usually are not, you may have to pursue a court petition through an elder law attorney who is familiar with this area of the law, in order to reform your documents to allow for this transfer. Most revocable living trusts and financial durable powers of attorney do not contain this favorable language. As a result people who are “baby boomer” age or older should consider getting their “Ducks In A Row” and have their elder law attorney or senior law attorney create an elder care plan for them, which will include estate planning documents with this favorable, asset protection language. An elder law attorney who is familiar with Medi-Cal qualification can certainly help you in this regard. Michael J. Young is an elder law attorney who practices in Walnut Creek, CA.

Written Michael J. Young, elder law attorney, Medi-Cal attorney, senior law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. He is Medi-Cal attorney and is VA Certified.  www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney. Senior Law Attorney

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