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Medicaid Recovery Claimed Even After Death of Spouse

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About half the cost of all nursing home care in this country is paid by the federal-state Medicaid program. The program is available to individuals who have reduced their assets below $2,000 (not counting homes, autos and a handful of other exempt assets). When the nursing home resident is married, he or she may qualify for Medicaid even though the spouse still living at home has assets; the “community spouse” may be permitted to retain as much as $81,960 (in 1999) in liquid assets.

Another difference between single and married Medicaid recipients becomes important on the death of the recipient. If a person is receiving Medicaid benefits at the time of death, the state Medicaid agency will have a claim against his or her estate for the cost of those benefits. It has long been federal law, however, that if the recipient’s spouse survives Medicaid may not make a claim for recovery. Two recent cases, in North Dakota and Idaho, raise the possibility that such claims may be made after the later death of the spouse.

When Nathaniel Thompson went into a nursing home in North Dakota, his care was paid for by Medicaid. His wife Victoria was permitted to retain some assets, and the program contributed $58,237.30 to his care during his two-year stay.

Nathaniel Thompson died in 1992. Since his wife survived him, the Medicaid agency could not make any claim against his estate. When Victoria Thompson died three years later, however, the state made a claim against her estate. Since she left only $46,507.98, the state’s claim essentially sought her entire estate.

Victoria Thompson’s Personal Representative objected, citing the federal law which prohibits estate recovery when a Medicaid recipient leaves a surviving spouse. The agency successfully argued that North Dakota law permitted the claim, and that the federal law did not override North Dakota’s statute.

On appeal, the North Dakota Supreme Court agreed with the state agency. Mrs. Thompson’s estate was required to pay the claim for her husband’s care, at least to the extent of any assets which she had received from him “through joint tenancy, tenancy in common … or other arrangement.” Estate of Thompson, December 22, 1998.

Lionel and Hildor Knudson lived in Idaho. When Mrs. Knudson entered a nursing home, their niece (acting as Mrs. Knudson’s conservator and as Mr. Knudson’s agent under a durable power of attorney) divided their assets into two shares; Mrs. Knudson was permitted to retain only her personal effects, a burial account and a small bank account. The Medicaid program then paid for her care for nearly two years, with total payments amounting to $41,600.55.

Mrs. Knudson died in 1994. Although Mr. Knudson did survive her, it was not for long; he died two weeks later. The Idaho Medicaid agency made a claim against Mr. Knudson’s estate for the care provided to his wife.

Although the trial judge disallowed the claim, the Idaho Supreme Court disagreed. Noting that state law permitted the claim, the justices returned the case to the trial court for a determination about what, if any, assets had been acquired as community property after division of the assets by the couple’s niece. The agency would be permitted to make its claim against any such assets. Estate of Knudson, November 2, 1998.

Arizona law provides a very different result. Recognizing the clear language of the federal law, Arizona makes no claim against the estate of a surviving spouse for care provided to the institutionalized spouse. Arizona has not attempted to adopt an estate recovery law like those in North Dakota and Idaho.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.