Legal Question in Elder Law in Ohio

Re: Estate and gift giving

You are correct with respect to the three year period in which Medicaid can look back at transfers of assets. However, it is possible to shorten the time of ineligibility by using the transfer rules, which is roughly one month for every $4000.00 transferred. A lot depends on the value of your mother's home, her income, her expenses as well as how much she intends to gift. Florida law may be more liberal on the treatment of her home, so would advise you to seek qualified help in your state.

Re: Estate and gift giving

First, she cannot give you any of her assets (cash or real estate) without affecting her Medicaid eligibility, if the gifts are made within 3 year of her application for Medicaid benefits. The only exception would be if she could demonstrate that she had been regularly making gifts to you and your brother over a period of time, and thereby overcome the presumption that she made the gifts to qualify for benefits. However this exception rarely applies.

Second, the $20,000 gift that your husband is referring to is actually a gift tax issue known as the gift tax exemption. Under prior tax law a gift giver could give any person $10,000 a year without incurring a gift tax, or being required to file a gift tax return. Thus, you and your brother equal $20,000 (2 x $10,000). This gift tax exemption has actually increased to $11,000, so your mother could actually give you and your brother $22,000.

I note that your mother is 85. Unfortunately I see this all to often, that is, Medicaid planning being ignored until it is almost to late to do anything.

There are some options. How much is the real estate worth, and how is her current health? Transfer all the assets now, and use available funds to purchase long term care insurance with a payable period of 3 years, and maintain that policy for at least 3 years. However give her age, this policy will be expensive, but the cost will be small compared to the $35,000 to $45,000 a year that a nursing home will cost.

The least advisable option would be to transfer the assets now and not purchase long term care insurance, and gamble that she will not need nursing home care for 3 years.

There might be other options, but without knowing all the details it would be pointless to discuss them all. This is a complicated area of law, and mistakes can be very costly. You should discuss your situation with a professional before doing anything. If I can be of service, please contact me.