Joint Tenancy With Right of Survivorship: A Partial, State-Dependent Shield From Medicaid Recovery
Maybe, but it’s not a guarantee, and it depends heavily on your state’s laws.
While Joint Tenancy with Right of Survivorship (JTWROS) is a powerful tool for avoiding probate (the court process of settling an estate), it may not fully protect an asset from Medicaid Estate Recovery (MERP).
Here is a user-friendly breakdown of why this strategy is risky and how Medicaid recovery works.
1. How JTWROS Works (And Why It Might Help)
Joint tenancy with right of survivorship means that when one co-owner dies, their share of the property automatically and immediately passes to the surviving owner(s), bypassing the deceased person’s will and the entire probate process.
- The theory of protection: Medicaid estate recovery generally seeks reimbursement from the “probate estate” — the assets that pass through the deceased person’s will or state inheritance laws. Since a JTWROS asset bypasses probate, the hope is that it will also bypass the state’s recovery claim.
- The reality: Federal law gives states the option to adopt an “expanded definition of estate.”
2. The Medicaid Recovery Risk: State Laws Rule
The effectiveness of JTWROS depends on how your state defines the “estate” for recovery purposes.
| State Type | Definition of "Estate" | JTWROS Protection? |
|---|---|---|
| “Probate- Only” States | Recovery is limited only to assets that pass through the probate process. | Medium/High protection. Since JTWROS assets avoid probate, they are typically protected from MERP. However, case law in a number of ‘probate-only’ states still allow for recovery on nonprobate assets. |
| “Expanded Estate” States | Recovery can be claimed against assets that bypass probate, including JTWROS property, life estates, and assets in living trusts. | Low/no protection. The state can file a claim against the deceased person’s interest in the jointly-owned asset, forcing the survivor to pay the claim to keep or sell the property. |
Important Warning: Adding a joint owner to your property is considered a transfer of assets and may trigger the Medicaid five-year lookback period. If you apply for Medicaid within five years of the transfer, you will be penalized with a period of ineligibility.
3. Other Exceptions That Protect the Home
Even in “expanded estate” states, federal law prohibits Medicaid from recovering or placing a lien on a home during the lifetime of certain surviving individuals:
- the surviving spouse
- a child under age 21
- a child of any age who is blind or permanently disabled
- a sibling who has an equity interest in the home and lived in it for at least one year before the recipient entered a nursing home
- an adult child (caregiver child) who lived in the home for at least two years immediately before the parent entered a facility and provided care that allowed the parent to stay home longer
Key Takeaway: While JTWROS is a common estate planning tool, it may not always be an effective defense against Medicaid Estate Recovery. The rules are complex, vary by state, and are subject to change.
To get a definitive answer and secure protection, be sure to consult with an elder law attorney in your state.
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