Detailed Answer
In Delaware, the Division of Medicaid and Medical Assistance (DMMA) must seek recovery of Medicaid benefits from a recipient’s estate after death under federal law (42 U.S.C. § 1396p) and Delaware Code Title 31 § 5177. However, you can request a hardship waiver to protect inherited property when recovery would cause undue hardship.
Legal Authority
Federal statute 42 U.S.C. § 1396p(b)(3)(C) permits a state to waive estate recovery if it would “work an undue hardship” on a surviving heir. Delaware Code Title 31 § 5177(b) authorizes DMMA to grant this waiver. See:
42 U.S.C. § 1396p and
Del. Code Ann. tit. 31 § 5177.
Eligibility Criteria
- Estate recovery notice received from DMMA.
- Claimed heir must demonstrate that enforcing recovery on the inherited property would deprive them of essentials (food, shelter, medical care).
- Property at issue is family home or other real estate inherited by a spouse, child under 21, or blind/disabled child (federal exceptions), or hardship for any heir.
Step-by-Step Application Process
- Obtain the notice: Review the DMMA demand letter for estate recovery, which lists the decedent’s Medicaid case number and property in probate.
- Gather documentation:
- Death certificate and probate court filings.
- Property deed and current appraisal.
- Heir’s income, expenses, assets and liabilities.
- Medical or care-related expenses demonstrating financial need.
- Draft a hardship waiver request: Address it to the Director of DMMA. Include:
- Case number and decedent’s name.
- Statement of undue hardship explaining how recovery would jeopardize your essential living needs.
- All supporting documents.
- Submit the request: Mail or deliver to DMMA’s Estate Recovery Unit. Use certified mail and keep copies of everything.
- Attend administrative review: DMMA must consider your request and may schedule an informal conference or hearing under 16 Del. Admin. C. § 1142.
- Receive decision: DMMA will issue a written waiver approval or denial. If denied, you have 30 days to request an administrative appeal.
Helpful Hints
- Act promptly—meet all deadlines in the DMMA notice.
- Keep organized copies of all filings and evidence.
- Detail monthly income and expenses to show hardship clearly.
- Consider free or low-cost legal aid for assistance.
- Be prepared to negotiate partial recovery or payment plans if full waiver is denied.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney about your specific situation.