Florida Medicaid Estate Recovery: What the State Can Claim After a Death

Federal law requires every state to seek repayment from the estates of people who received Medicaid at 55 or older. At a minimum, that covers nursing facility care, home and community-based services, and related hospital and prescription costs. States may choose to recover for other Medicaid services too, but not for help with Medicare cost-sharing (42 U.S.C. 1396p(b)(1)(B)). Florida's statute is written broadly. It makes the debt "the total amount paid to or for the benefit of the recipient for medical assistance" after age 55 (Fla. Stat. 409.9101(3)).

Three points often reassure families:

The debt belongs to the estate, not to the children. See paying for care. Florida collects by filing a claim in the probate case, like any other creditor (Fla. Stat. 409.9101(2)). The claim can never be more than what Medicaid actually paid.

Florida doesn't enforce the debt if the Medicaid recipient is survived by any of these (Fla. Stat. 409.9101(6)):

a spouse; a child under 21; or a child of any age who is blind or permanently and totally disabled under Medicaid's rules.

Federal law describes this as timing: recovery may happen only after the surviving spouse has died, and only when there's no child under 21 or blind or disabled child (42 U.S.C. 1396p(b)(2)). So if Dad was on Medicaid and Mom survives him, no claim is enforced at his death.

The estate recovery debt can't be enforced against property that Florida's Constitution or laws protect from creditors (Fla. Stat. 409.9101(7)). The most important example is protected homestead, the Florida home the person lived in, when it passes to the people the Constitution protects, such as a spouse or children.

The protection has limits:

It covers the home, not cash. If the home was sold before death, the money in the bank is generally reachable. A home left by will to someone outside the protected heirs may lose protection. The form of ownership matters. Our Florida law updates page explains a recent appellate opinion where a co-op apartment was not treated as homestead against AHCA's claim, because of the law in force on the date of death. Other real estate, such as a second home, isn't homestead. If there's no cash to pay the claim, the statute says nonexempt property is sold when sale costs won't exceed the proceeds. The state never takes title to real property itself (Fla. Stat. 409.9101(10)).

Our Lady Bird deed guide covers passing the home outside probate.

When a probate case is opened for someone who was 55 or older, the personal representative must serve the notice to creditors and a death certificate on AHCA within 3 months after the notice is first published, unless AHCA has already filed a claim (Fla. Stat. 733.2121(3)(d)). This applies whether or not the person had Medicaid. Notices go to the Florida Medicaid TPL Recovery Program, P.O. Box 12188, Tallahassee, FL 32317-2188 (AHCA).

Once it files, AHCA is an "interested person" in the case and may amend its claim as a matter of right for up to 1 year after the last date of service (Fla. Stat. 409.9101(3), (4)). The estate pays debts in a fixed order. First come administration costs and fees (class 1), then funeral expenses up to $6,000 (class 2), then the Medicaid claim along with certain federal debts and taxes (class 3). Last-illness bills, family allowance and ordinary creditors come after (Fla. Stat. 733.707(1)).

For the general creditor timeline and the first steps after a death, see what to do after a death and Florida probate explained.

Federal law lets states choose an expanded definition of "estate" that reaches jointly owned property, life estates and living trusts (42 U.S.C. 1396p(b)(4)). Florida's statute instead works through a claim against the estate in probate (Fla. Stat. 409.9101(2)). Assets that pass directly to a named person, such as survivorship joint accounts, payable-on-death accounts, IRAs and life insurance with a living beneficiary, usually don't enter probate.

A revocable living trust is different. Florida law makes a revocable trust liable for the estate's expenses and claims when the probate estate isn't enough to pay them. (Fla. Stat. 733.707(3); Fla. Stat. 736.05053). A revocable trust avoids probate, but it isn't a shield from a valid Medicaid claim.

If the estate includes an injury settlement, AHCA's separate lien is paid first, and half of the rest is available for the estate claim (Fla. Stat. 409.9101(9)).

Some Medicaid planning trusts repay the state directly at death, even without probate or if a spouse survives:

Qualified Income Trust (Miller trust). It holds income over the $2,982 monthly limit. At death, the state receives what's left, up to the total Medicaid paid (42 U.S.C. 1396p(d)(4)(B)). See our Miller trust guide. First-party special needs trust. It holds the assets of a disabled person under 65 and must repay Medicaid at the person's death (42 U.S.C. 1396p(d)(4)(A)). Pooled trust account. To the extent the nonprofit doesn't keep the balance, it repays the state (42 U.S.C. 1396p(d)(4)(C)).

A third-party special needs trust, funded with someone else's money, has no payback. See special needs planning.

AHCA can't recover from an estate when recovery would cause undue hardship for qualified heirs. The personal representative or any heir may ask AHCA to waive some or all of the debt (Fla. Stat. 409.9101(8)). Losing an expected inheritance isn't a hardship by itself. AHCA considers whether:

the heir lives in the home now, lived there at the death and for the 12 months before it, and owns no other home; the heir would be deprived of food, clothing, shelter or medical care necessary for life or health; a son, daughter or sibling who lived with the recipient for at least a year gave full-time care that delayed nursing home entry; or the cost of selling the property would equal or exceed its value.

Make the request in writing, with proof, early in the probate case.