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Two of the New York Medicaid Redesign Team’s proposals that were most damaging to the elderly and their spouses, and to the parents of disabled children, were not included in the final budget approved by the Legislature on March 30, 2011.

We can all breathe a sigh of relief that New York is not going to impose a look back period for gifts and transfers for Community Medicaid or Medicaid Home Care, which would have caused devastating penalties. In addition, spousal refusal and parental refusal for community based Medicaid will not be eliminated. Both of these proposals are discussed in an earlier post on this Blog.

At the same time, however, the Legislature enacted an amendment to the definition of an individual’s estate for Medicaid purposes, with the obvious purpose of expanding Medicaid’s ability to recover greater amounts from the estates of Medicaid recipients. The expanded definition now includes retained life estates, jointly held property, and interests in trusts.

We believe that the expanded definition is problematical in a number of respects, and will likely lead to litigation. Unfortunately, it may be some time before we have clarity from the courts regarding the reach of these definitional changes.

In the meanwhile, it may be important to have your estate plan reviewed by an Elder Law attorney.

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