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The NYS Department of Health has finally issued long-awaited regulations implementing changes in New York law regarding recovery and reimbursement from estates of Medicaid recipients. These changes have been very controversial because the law’s new definition of what constitutes the estate is in conflict with other, long-established, laws affecting estates, trusts, and real estate. In essence, under the new laws and regulations, Medicaid will seek to recover from non-probate assets, i.e., assets that have never been considered to be part of a decedent’s estate, or even to exist at all after death. A prime example is that Medicaid will seek to recover the value of life interests in real estate (which, under real estate law, are extinguished upon death). Lamson and Cutner is currently analyzing the new regulations, and will be posting additional advisories once we have a clear view of their implications.

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