When the New Hampshire Medicaid reform bill took effect on August 30, one immediate effect was that DHHS is now empowered to recoup the value of a decedent’s joint interest from a remainderman, or surviving joint tenant, in an asset held jointly and passing outside of probate, without regard to the date on which that remainder interest was created. 

Similarly, the new law allows the state to look to a surviving joint tenant (though not a spouse, minor child, or disabled child) for compensation from the share of the property owned by the Medicaid recipient immediately prior to death.

“It amounts to paying value for the inheritance rather than being enriched by a deceased recipient of publicly funded assistance,” according to DHHS staff attorney Lisabritt Solsky.

Under prior law, it was not uncommon to counsel single elderly clients to deed their homes to themselves and an adult child or sibling with rights of survivorship, eventually resulting in an automatic, and complete transfer of the home upon the client’s death.  This may still be permissible in some instances, depending on the level of care the adult child provided to the parent prior to the Medicaid application, and on whether the adult child continues to live in the home.

But in some instances, the state will now be able to look to the value of the client’s interest in jointly held real estate immediately prior to death.

Solsky is quick to point out that DHHS “is painfully aware of the housing shortage,” and is “not about to put people out on the street.” If a surviving joint tenant or remainderman were unable to pay the Medicaid lien, DHHS would simply record the lien and recoup upon the eventual sale of the house, Solsky said. Current DHHS policy is not to force the sale of property subject to Medicaid liens.

Solsky also notes that the state’s recovery cannot exceed the value of the decedent’s interest in the jointly held asset.

The new language will be codified at RSA 167:14-a, VI, and can be found now at 175:8 in HB 691.

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