Answers to general legal questions posed by the general public
by Memphis Attorney Christina Burdette
Q: "Estate was entered into probate in 2013,......estate has funds just over 30,000.00 so did not qualify for small estate at the time. since small estate laws changed in 2014 can I refile this estate as a small estate thereby eliminating the tenncare claim?"
A: Whether or not a TennCare waiver.....should be requested is not driven by the procedure used to open an estate. The estate of any person age 55 and older for whom TennCare (Medicaid) has paid for nursing home (or other long-term institutional) services or Home and Community Based Services and the estate of any permanently institutionalized individual is subject to TennCare (Medicaid) Estate Recovery. If the estate is not being probated, you do not have to provide the probate court information, but you must obtain a release of TennCare's claim prior to disbursement of funds and/or assets. So refiling as a small estate will not obviate the requirement that you request a waiver from the Bureau of TennCare.
There are only a few exemptions from estate recovery: If there is a surviving spouse, TennCare will not recover from the estate until the time of the surviving spouse's death if:
The surviving spouse requests an exemption; and
The surviving spouse provides documentation of proof of marriage.
If there is a minor child under the age of 18, TennCare will not recover from the estate until the minor child reaches the age of 18 if:
The child or the child's representative requests an exemption to recovery; and
The child or the child's representative provides a copy of the child's birth certificate as proof of relationship.
If there is a disabled child TennCare will not recover from the estate until the death of the disabled child if:
The disabled child or the disabled child's representative requests an exemption; and
The disabled child or the disabled child's representative provides a copy of the Social Security Disability Determination proving disability; and
The disabled child or the disabled child's representative provides a copy of a birth certificate proving relationship.