North Dakota Medicaid Estate Recovery

What North Dakota recovers

After a Medicaid recipient dies, HHS files a preferred claim against the recipient's estate for the total medical assistance it paid on the recipient's behalf after the recipient's 55th birthday, or, for a recipient of any age who lived in a nursing facility, an intermediate care facility for individuals with intellectual disabilities or another medical institution and whom the department determined was not reasonably expected to be discharged and return home, after that institutionalization (N.D.C.C.

North Dakota 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: North Dakota's Medicaid recovery statute, N.D.C.C. 50-24.1-07, makes a claim against the recipient's estate and does not adopt the broader federal estate definition that reaches joint tenancy, life estates and living trusts directly. Some non-probate property can still be reached, for four reasons. First, HHS can collect from the estate of the recipient's spouse after the spouse dies, and every asset in that estate is presumed to be one the recipient had an interest in (50-24.1-07(1) and (5)), so a home that passed to the spouse by joint tenancy can be reached at the spouse's death. Second, if the probate estate cannot pay its claims, a joint or payable-on-death bank account is not effective against the estate to the extent needed to pay them, and the survivor can be made to account within one year after death (30.1-31-12); HHS policy says it may use the affidavit for collection on these accounts. Third, if the probate estate is not enough, the estate can enforce an allowed claim against property that passed by a transfer on death deed, for up to 18 months after death, unless it was later sold or mortgaged to someone who paid value (30.1-32.1-12). Fourth, property in a trust that was revocable right before death is subject to the settlor's creditors to the extent the probate estate is inadequate (59-13-05), and HHS policy says trusts, self-funded special needs trusts and ABLE accounts may be subject to recovery. So a joint account, a transfer on death deed or a living trust does not by itself put an asset beyond an HHS claim in North Dakota. HHS policy treats life estates, and insurance, annuities and investment accounts with a named beneficiary other than HHS, as generally not subject to recovery.

55 and older, plus any age for a permanently institutionalized recipient. N.D.C.C. 50-24.1-07(1) reaches assistance paid after the recipient's 55th birthday, and, for a recipient who lived in a nursing facility, an intermediate care facility for individuals with intellectual disabilities or another medical institution and whom the department determined was not reasonably expected to be discharged and return home, assistance paid after that institutionalization with no age limit. Under the HHS Estate Recovery Policy Manual (section 2.1(a)), benefits paid before October 1, 1993 are recoverable only if paid at age 65 or older, and the under-55 institutionalized rule applies to benefits paid on and after November 1, 2010 to a recipient who received written notice of permanent institutionalization.