The Complicated Medicaid Transfer Rules

 In Long-Term Care Planning

As explained here, to qualify for Medicaid coverage of your nursing home care, you’re limited to $2,000 in countable assets (in most states) and your spouse is limited to about $120,000. So, why not qualify for Medicaid coverage of nursing home care simply by transferring assets out of your name so your accounts total less than $2,000? Because Congress does not want you to move into a nursing home on Monday, give all your money to your children (or whomever) on Tuesday, and qualify for Medicaid on Wednesday. So it has imposed restrictions on the ability of people to transfer assets before applying for Medicaid coverage without receiving fair value in return.

Calculation of the Transfer Penalty

The restrictions are in the form of a penalty for asset transfers –– a period of time during which the person transferring the assets (and his or her spouse) will be ineligible for Medicaid. The period of ineligibility is determined by dividing the amount transferred by what the state Medicaid agency determines to be the average private pay cost of a nursing home in your state. For example, if you live in a state where the average monthly cost of care has been determined to be $8,000, and you give away property worth $120,000, you will be ineligible for benefits for 15 months ($120,000 ÷ $8,000 = 15).

However, because of the way this penalty is applied, as a practical matter the penalty period is much longer because the penalty period does not begin until you  (1) move to a nursing home, (2) spend down to the asset limit for Medicaid eligibility, and (3) apply for Medicaid coverage. The look back period is the requirement that when you apply for Medicaid benefits that you report all transfer you made during the prior five years. Here’s how this works:

April 1, 2018     Transfer $120,000

April 1, 2019     Move to nursing home

April 1, 2020     Spend down all other assets and apply for Medicaid

April 1, 2020     Beginning of 15-month transfer penalty period

July 1, 2021       End of penalty period and beginning of Medicaid coverage

As you can see, the effective penalty in this example is three years and three months, not 15 months. This would leave you with 15 months in the nursing home with no coverage and no money left to pay for your care. If you gave the money to your children and they returned it, this would eliminate the penalty period — often called a “cure” — and give you money to pay for your care. If the actual cost of the nursing home were higher than the $8,000 the state claims to be the average, you might spend down the $120,000 more quickly and become eligible for benefits sooner than July 1, 2021. However, you’d have to be very fortunate if in 2020 your children still had the $120,000 you gave them in 2018 and they were willing to return it to you. This often leaves nursing home residents, nursing homes and family members in conflict because the money is gone and the facility is not being paid to care for the resident. This can turn into ugly lawsuits.

The Five-Year “Look Back” Period

When you apply for Medicaid, you must report any transfers you or your spouse made during the prior five years. this can be a trap for the unwary here for people who transfer large amounts. Let’s say that instead of transferring $120,000, you gave your house worth $600,000 to your children. This would cause six years and three months of ineligibility ($600,000 ÷ $8,000 = 75). Given the timing of the transfer, entering a nursing home, and applying for Medicaid described above, if the transfer penalty began on April 1, 2020, it would not end until July 1, 2025, more than seven years after you made the transfer and more than six years after you entered the nursing home. If, instead, you waited until April 2, 2023, to apply for benefits — five years and one day after transferring the house — you would not have to report the gift and you would be immediately eligible for Medicaid coverage, two years and three months sooner than if you applied during the five-year look back period. Timing can be everything.

Other Reasons Not to Make Gifts

Bear in mind that if you give money or other property to your children, it belongs to them and you should not rely on them to hold the money for your benefit. However well-intentioned they may be, your children could lose the funds due to bankruptcy, divorce or lawsuit. Any of these occurrences would jeopardize the savings you spent a lifetime accumulating. Do not give away your savings unless you are ready for these risks. In addition, transfers can affect grandchildren’s eligibility for financial aid and have bad tax consequences for children receiving the funds.

Moreover, the transfer of appreciated property to your children during your life can mean that your children will not get a step-up in basis in the property by inheriting it from you at your death. This is especially relevant with respect to real estate and stock. Here’s how this works: Say you purchased stock for $10 a share 30 years ago and today it’s worth $100 a share. The $10 purchase price is your “basis” in the stock. If you sell the stock today, you will have capital gain of $90 a share, the difference between the basis and the selling price, on which you will have to pay taxes. If you give the stock to your children, they will have the same basis as you and have to pay the same taxes if they sell it. On the other hand, if they inherit the stock at your death, the stock’s basis gets “stepped up” to the value on your date of death. If that is $100 and your children sell the stock for $100, then there’s no gain and no tax

In any case, as a rule, never transfer assets for Medicaid planning unless you keep enough funds in your name to (1) pay for any care needs you may have during the resulting period of ineligibility for Medicaid, (2) feel comfortable making the gift, and (3) have sufficient resources to maintain your present lifestyle.

Remember: You do not have to save your estate for your children. The bumper sticker that reads “I’m spending my children’s inheritance” is a perfectly appropriate approach to estate and Medicaid planning.

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