What Rights Does Medicaid Estate Recovery Waiver Give Disabled Heir?
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Question:
If a disabled adult child clause has prohibited the Medicaid estate recovery on her dad’s estate, can the probate attorney who advised the sale of the property then divide the proceeds between the TWO heirs? Shouldn’t the disabled heir receive the estate in a trust? The other heir has two homes and works full time. The heir was living in the home that was sold and now has just 30 days to vacate. She draws Social Security disability and works only the few hours allowed by her disability. She’s a single mom with two children about to be without a home. I don’t feel the probate attorney is advising her correctly. We are in Kentucky.
Response:
If I understand your question, the dad’s estate qualified for a waiver of Medicaid estate recovery because one of the heirs is disabled. Your question is whether this confers on the disabled heir any rights she would not otherwise have. While I can’t comment on Kentucky law in particular, the answer is probably no.
This is because the Medicaid estate recovery and probate laws are entirely separate. The estate recovery waiver may be based on an heir’s disability but it sounds like the father’s will gave that heir no more rights than the other heir.
Some state estate recovery programs only offer provisional waivers, for instance requiring that the qualifying heir continue to live in the house for at least two or three years. But this does not appear to be the case in Kentucky.
While the disabled heir may have no legal rights, they would appear to have moral rights since their need for the home appears to have saved the estate significant money (though I don’t know how much). They should get legal representation and make their case, which should at least gain them some leverage. In addition, their disability may give them more rights in fighting the eviction, also giving them some leverage towards a more favorable settlement. But, again, they will be better able to assert these rights with local representation.
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