Medicaid Estate Recovery in Delaware

What is recovered

For an individual receiving long-term care, § 5003 has the Department seek recovery of any disbursements made on the individual's behalf under the State Plan for Medical Assistance, from the individual's estate or upon sale of property subject to a lien.¹

Exemptions and protected assets

DSSM 20500.1 exempts from estate recovery Medicaid payments for Medicare cost-sharing (Part A and B premiums, deductibles, coinsurance and co-payments) with a date of service on or after January 1, 2010.²

Who is subject to recovery

DSSM 20500.1 applies the estate recovery and lien policy to individuals age 55 and over who are applying for DHSS long-term care services: nursing facility services, home and community-based waiver services, and community-based long-term care services and supports.²

When recovery is deferred or barred

Under § 5003(1), recovery happens only after the death of the individual and the death of a surviving spouse who was residing in the home on a continuous basis.¹

DSSM 20500.5.1 has DHSS not seek recovery while there is a surviving spouse, a surviving blind or disabled child (SSI disability rule) who was residing in the home on a continuous basis immediately before the death, or a child under age 21.²

Liens on real property

DSSM 20500.5.2 has DHSS not recover against a lien on the home where a son or daughter over 21 lived there lawfully for at least 2 years immediately before the recipient's long-term care admission, has lived there continuously since, and can show they provided the care that let the recipient stay at home.²

The same rule bars recovery against the home lien where a sibling lawfully lived in the home for 1 year (12 months) immediately before admission. DHSS can still recover from other estate assets.²

Undue-hardship waiver

Section 5005 has the Department waive estate recovery where it would work an undue hardship, and the waiver remains in effect only as long as the hardship condition continues.¹

Under DSSM 20500.5.3.1 and 20500.5.3.2, hardship applies to a civil union partner, child, grandchild, parent or sibling who lived in the recipient's home continuously for at least 2 years (24 consecutive months) before the recipient entered long-term care.²

That relative must also either receive federal or state assistance for living expenses with no other home to return to, or have family income at or below 200% of the federal poverty level with resources convertible to cash of $3,000 or less.²

Governing law: Del. Code tit. 25, ch. 50 (Liens and Estate Recoveries), §§ 5002, 5003, 5005; DSSM 20500

1. 1.Del. Code tit. 25, ch. 50, Liens and Estate Recoveries
2. 2.Delaware Social Services Manual 20500, Estate Recovery and Liens