Medicaid and property in rights of survivorship in Pennsylvania
Executive summary
Pennsylvania’s Medicaid Estate Recovery targets a deceased recipient’s probate estate to recoup long‑term care Medicaid costs, but property titled as joint tenants with rights of survivorship or as tenants by the entireties generally bypasses probate and therefore is not subject to the Department of Human Services’ claim [1] [2] [3]. Federal rules require states to run an estate recovery program for long‑term care benefits, but states can choose to limit recovery to probate assets — and Pennsylvania has done so, with specific postponements and narrow exceptions [3] [4] [5].
1. How Pennsylvania defines the “estate” the state can reach
Pennsylvania’s Medical Assistance Estate Recovery (MAER) focuses on “probate estate property,” meaning real and personal property subject to administration by a personal representative after death; the Department’s regulation explicitly states that property held by a decedent and another as joint tenants with rights of survivorship or tenants by the entireties is not subject to the Department’s claim [5] [1]. That statutory/regulatory framing means assets that pass outside probate by survivorship or by beneficiary designation typically escape MAER in Pennsylvania, a narrower approach than some states that try to reach non‑probate transfers [6] [4].
2. Rights of survivorship: what they protect and where they can fail
When a property deed clearly creates joint ownership “with rights of survivorship” or a tenancy by the entireties, the surviving co‑owner steps into full ownership without the property entering probate, so MAER will not attach to that real property at the recipient’s death [2] [7] [8]. That protection depends on clear titling language — Pennsylvania law presumes tenants in common unless a deed expressly creates survivorship rights — and unclear deeds or contested ownership can force litigation or permit recovery if the asset becomes part of the probate estate [2] [9].
3. Who is covered, timing, and postponement rules
Federal law requires estate recovery for Medicaid long‑term care payments for certain recipients, and Pennsylvania applies recovery only after the recipient’s death; however, recovery is postponed while a surviving spouse lives or while a child under 21 or disabled remains alive, and there are administrative processes (such as a 45‑day request for a statement of claim) that executors must follow; failure to meet procedural rules can bar collection [3] [10] [11]. Pennsylvania excludes recoveries for estates valued below certain thresholds and provides avenues for waiver or postponement in specific hardship cases [12] [11].
4. Planning, transfers and the risk of attracting scrutiny
Elder‑law practitioners note that while joint titling can shield property from MAER, transfers or title changes done around the time of applying for Medicaid can trigger eligibility problems or be treated as improper transfers if not executed and disclosed correctly; the Department expects disclosure of transfers and asset changes and counsel warns that well‑intentioned planning can backfire without legal guidance [13] [11] [10]. Several sources offering planning advice are law firms and may have an interest in promoting paid consultations or specific strategies, a potential commercial bias to keep in mind [2] [13] [12].
5. Practical takeaways and limits of available reporting
For Pennsylvania property owners, clear survivorship titling is the primary way real property avoids MAER because it removes the asset from probate, but whether a particular deed or account accomplishes this requires document review and sometimes court action; state rules and federal prompts also leave room for waiver and postponement in narrow circumstances [1] [5] [12]. The reporting reviewed provides statutory, administrative, and elder‑law commentary on Pennsylvania practice but does not substitute for case‑specific legal advice; where sources conflict about edge cases (for example, how aggressive Pennsylvania might be in litigating alleged sham transfers), the available materials do not resolve those disputes definitively [4] [6].