What is Estate Recovery?
In 1993, the Federal Government enacted a broad new law to require states to recover from the estates of deceased individual for whom they provided care. Ohio adopted this law as well as all other states. In 2005, the Federal Government enacted the Budget Deficit Reduction Act and the State of Ohio, following their lead, adopted Amended Substitute House Bill 66. This law permits the State of Ohio to place liens on your homes, farms and other real estate for medical and other public benefits. A state appointed reform commission reported that this expanded program would bring in an additional 22 Million dollars annually. This law is intended to help the State solve its budget problems by charging you back for state benefits that you received, particularly Nursing Home benefits.
What are Estate Recovery Liens?
By Federal law, the Ohio Department of Job and Family Services may impose a lien against the home and other real property to recover the costs of services they paid for in-home or nursing home care. Recovery can be from the estate of the individual whose care was paid for or from their spouse. The Ohio Attorney General has hired attorneys throughout the state to file claims to collect on these liens.
This means, that your homes, farms and other real estate are now subject to liens that may prohibit you from selling or transferring your real estate to your children or others without first satisfying the lien. In a recent court case, Ohio Department of Job & Family Services v. Tultz provides that, unlike other liens, formal notice is not required and the lien takes effect on the very first day that benefits are paid on behalf of you or your spouse.
Who is Subject to Estate Recovery?
The Estate Recovery program applies to all individuals who received any services for which the State of Ohio paid and for those services provided after the recipient reached the age of 55 who are deceased and not survived by a surviving spouse, minor child or adult disabled child.
One of the most common misconceptions about the estate recovery program is that a recipient must be a resident of a nursing home for at least six months before being subject to estate recovery. There is in fact no minimum time for receiving service, either nursing home care or home and community based services. This confusion results from an old rule where a nursing home resident is asked to sell the homestead if there is not a community spouse or other exempt situation after six months.
How Long does Ohio have to Recover the Claim?
Generally, the State of Ohio is not bound by any statute of limitations to bring a claim. An older common pleas case, In re Moore (Franklin Co. CP 1958), 154 N.E. 2d 675, held that a claim by the Ohio Department of Mental Retardation for support was not barred by the one year claim presentment limitation of the Ohio Revised Code. The Department therefore has maintained the position that the one year claim statute does not bind it. More recently in 2001, a Summit County Court of Appeals affirmed the trial court’s ruling that the one year bar does not apply to the state.
How can I Protect Myself from Estate Recovery?
As you can imagine everyone's family situation is a little different, as such there is no single fix for everyone.
Contact an experienced attorney to discuss your situation, and get legal advice geared towards your specific situation.