Medicaid Estate Recovery in Wisconsin

What is recovered

Wis. Stat. 49.496(3)(a) reaches medical assistance paid while the recipient resided in a nursing home, or while the recipient was a hospital inpatient and was required to contribute to the cost of care.¹

Recovery also reaches home- and community-based services, long-term care program services, and personal care services received at age 55 or older.^{1, 2}

Who is subject to recovery

Wis. Stat. 49.496(3) and 49.849(2) let the Department collect from the estate of a deceased nonrecipient surviving spouse for Medicaid paid for the recipient.^{1, 3}

What counts as the estate

Wis. Stat. 49.849(1)(d) defines "property of a decedent" to include assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.^{1, 3}

There is a rebuttable presumption, consistent with Wis. Stat. 766.31, that all property of the deceased nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of it is subject to the Department's claim.^{1, 3}

When recovery is deferred or barred

Wis. Stat. 49.849(2)(a)2. bars the Department from collecting while the decedent is survived by a spouse, a child under age 21, or a disabled child of any age.^{1, 3}

Exemptions and protected assets

Wis. Stat. 49.849(2)(b) reduces recovery, by up to the amount in Wis. Stat. 861.33(2), so heirs or will beneficiaries may retain the decedent's wearing apparel and personal jewelry, household furniture, furnishings, and appliances, and other non-business tangible personal property.³

Undue-hardship waiver

A person who co-owned property with the decedent or who is a beneficiary of the property may request a hardship waiver from the Department, and the Department's recovery affidavit must say so.³

How the state files its claim

A person who possesses property of the decedent and receives a recovery affidavit may request a departmental fair hearing on the value of the property and the extent of the recipient's interest within 45 days after the affidavit was sent.³

Liens on real property

Wis. Stat. 49.849(4) gives the Department a lien on the decedent's real property, recordable with the county register of deeds, but bars foreclosure while the decedent's spouse, or a child under 21 or disabled, is alive.³

Governing law: Wis. Stat. 49.496; Wis. Stat. 49.849

Request for a departmental fair hearing on a recovery affidavit

within 45 days of the date the affidavit was sent³

County register of deeds

Recording the Department's lien on the decedent's real property³

1. 1.Wis. Stat. 49.496, Recovery of correct medical assistance payments
2. 2.Medicaid: Estate Recovery Program (Wisconsin Department of Health Services)
3. 3.Wis. Stat. 49.849, Recovery of correct payments under certain public assistance programs