Hawaii Medicaid Estate Recovery
After someone who received Medicaid long-term care dies, Hawaii can file a claim against their estate. This guide explains what is recovered, who is protected, and how to ask for relief.
Based on HRS 346-37 (recovery of payments and costs of medical assistance); HRS 346-29.5 (real property liens); federal authority 42 U.S.C. 1396p(b)
What Hawaii recovers
HRS 346-37(a) directs the Department of Human Services to file a claim against the estate of a deceased Medicaid recipient for the amount of medical assistance granted.
Covered services and programsThe full list of care and waiver programs the claim can include
HRS 346-37(a) directs the Department of Human Services to file a claim against the estate of a deceased Medicaid recipient for the amount of medical assistance granted. It may do so only if the recipient was 55 or older when the assistance was received, or was an inpatient in a nursing facility, an intermediate care facility for individuals with intellectual disabilities, or another medical institution, and in both cases only if there is no surviving spouse and no surviving child who is under 21, blind, or disabled. The statute's words are the amount of medical assistance granted, not only long-term care. In a probate, a 346-37 claim for the last illness is paid in the fourth class with other last-illness medical bills, and any other 346-37 claim is paid in the sixth class, ahead of general creditors (HRS 560:3-805). The claim is subject to the ordinary Hawaii deadline for claims of the State: four months after the first published notice to creditors, sixty days after written notice if later, or eighteen months after death if no notice was given (HRS 560:3-803). In a small estate the department may use the collection affidavit itself, and its affidavit has priority (HRS 560:3-1201). Separately, while a recipient is living in a medical institution with no expectation of returning home, the department may record a lien on the recipient's real property after notice and hearing (HRS 346-29.5(b)), and that lien is enforceable as a claim against the estate.
Hawaii recovers only from the probate estate. Assets that pass outside probate, such as joint property with survivorship, life estates, living trusts, and transfer-on-death or pay-on-death accounts, are generally beyond recovery.
Important: Two Hawaii statutes narrow that rule. A home passed by a transfer on death deed can be reached for an allowed claim against the estate when the probate estate is too small to pay it, in a proceeding brought within 18 months after death (HRS 527-15). Property in a trust that was revocable at death is subject to the same claims to the extent the probate estate is inadequate (HRS 554D-505(a)(3)). So a living trust or a transfer on death deed does not by itself protect the home. Joint and payable-on-death bank accounts are different: the estate can pull them back only for taxes, administration costs, and family allowances (HRS 560:6-107). And a lien the department recorded on real property while the recipient lived in a nursing facility stays enforceable after death (HRS 346-29.5).
55 and older when the medical assistance was received (HRS 346-37(a)), the federal baseline at 42 U.S.C. 1396p(b)(1)(B). A recipient who was an inpatient in a nursing facility, an intermediate care facility for individuals with intellectual disabilities, or another medical institution is subject to a claim at any age.
Who is protected from recovery
Surviving spouse: the department files its medical assistance claim only if there is no surviving spouse (HRS 346-37(a)).
Child under 21: no claim while a child of the recipient under age 21 survives (HRS 346-37(a)).
Blind or disabled child: no claim while a blind or disabled child of any age survives (HRS 346-37(a)).
Sibling with an equity interest in the home who lived there at least one year before the recipient entered the institution: no lien on the home while that sibling lawfully lives there, and no recovery from the lien while a sibling who lived there that year has lived there continuously since (HRS 346-29.5(b)(1) and (b)(2)).
Caregiver son or daughter who lived in the home at least two years before admission and provided care that kept the recipient out of an institution: no recovery from the home lien while that child lawfully lives there continuously (HRS 346-29.5(b)(2)).
Recipient under 55 who was never an inpatient in a nursing facility or other medical institution: no estate claim for medical assistance (HRS 346-37(a)).
Discharge home: a lien placed on an institutionalized recipient's real property is dissolved if the recipient is discharged and returns home (HRS 346-29.5(b)(4)).
Undue hardship: the department may compromise the lien or claim when the heirs or personal representative prove that full collection would cause undue hardship (HRS 346-29.5(d); federal waiver requirement at 42 U.S.C. 1396p(b)(3)).
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Property that may be exempt
- The home lived in by the assistance household is excluded from the lien agreement the department may require from a living applicant or recipient who owns real property (HRS 346-29.5(a)).
- The recipient's home cannot be liened while the recipient's spouse, a minor, blind, or disabled child, or a sibling with an equity interest who lived there for at least one year before admission lawfully lives in it (HRS 346-29.5(b)(1)).
- Payable-on-death and joint bank accounts that pass to a survivor can be pulled back into the estate only for taxes, administration expenses, and the homestead and family allowances, not to pay a creditor claim (HRS 560:6-107).
- Property that passes by joint tenancy, a life estate, or a beneficiary designation is not reached by any Hawaii statute read for this file, because the claim runs against the probate estate.
- Funeral expenses, expenses of the last sickness, the cost of administering the estate, and the support allowance for the surviving spouse and children are paid ahead of the department's lien and claim (HRS 346-29.5(d)).
Undue-hardship waiver
Hawaii can waive recovery when it would cause an undue hardship for the heirs. Contact Hawaii Department of Human Services to request the waiver and confirm deadlines.
Under HRS 346-29.5(d), any of these can qualify:
- The recipient, the recipient's heirs, personal representatives, or assigns prove that collecting the full amount of the lien or claim would cause undue hardship, or that it is otherwise uncollectible; the department may then compromise it.
- The department may release or waive the priority of the lien, in whole or in part, when that is needed for the maintenance or support of the recipient, the recipient's spouse, or a minor or incapacitated child.
- The director is to consider conditional certificates of release in cases of extreme hardship, as set out in the department's rules adopted under chapter 91.
The statute sets no application deadline or decision timeline; those would be in the department's administrative rules, which could not be read for this file.
Frequently asked questions
Who is protected from Medicaid estate recovery in Hawaii?
What does Hawaii Medicaid recover after death?
Can I apply for an undue-hardship waiver in Hawaii?
Who handles Medicaid estate recovery in Hawaii?
Agency and statute sourcesOfficial references used for this page
- HRS 346-37, recovery of payments and costs of medical assistance (Hawaii State Legislature, official HRS compilation).
- HRS 346-29.5, real property liens securing public and medical assistance (Hawaii State Legislature).
- HRS 346-14, duties of the Department of Human Services (Hawaii State Legislature).
- HRS 560:3-805, order of payment of claims in a Hawaii probate (Hawaii State Legislature).
- HRS 560:3-803, the Hawaii nonclaim statute (Hawaii State Legislature).
- HRS 560:3-1201, collection of personal property by affidavit (Hawaii State Legislature).
- HRS 527-15, transfer on death deed property liable for creditor claims (Hawaii State Legislature).
- HRS 554D-505, creditor's claim against the settlor of a trust (Hawaii State Legislature).
- HRS 560:6-107, rights against multiple-party accounts (Hawaii State Legislature).
- 42 U.S.C. 1396p, the federal Medicaid lien and estate recovery section (Office of the Law Revision Counsel).
Information current as of September 24, 2026
Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Hawaii can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.