I wrote a couple weeks ago on how even without a federal estate tax a current estate plan is a necessity (click here). Additionally, I’m a strong advocate of involving an attorney, in some capacity, in all legal matters. The recent Missouri court of appeals case In the Estate of Shirley Marie Smith illustrates both of these points.
Pursuant to Section 473.398 RSMo, upon the death of a person, who has been a participant of aid, assistance, care, services, or who has had moneys expended on his behalf by a governmental agency, the total amount paid to the decedent or expended upon his behalf shall be a debt due the government from the estate of the decedent. The government may not recover, however, if it is shown, that that the cost of collection will exceed the amount of the claim or that the collection will adversely affect the need of the surviving spouse or dependents of the decedent to reasonable care and support from the estate. Once the government shows that the decedent received benefits, the burden of proof shifts to the person opposing collection.
In In the Estate of Shirley Marie Smith, the decedent had received Medicaid benefits through MO HealthNet for the five months preceding her death. Upon her death, the MO HealthNet Division filed a claim to recover these benefits, $10,003.66. The decedent’s son, who was also the personal representative of the decedent’s estate, responded with a petition asking for a denial of the division’s claim on the basis that the son was unemployed, lacked the skills and capacity to obtain employment and was living in the decedent’s home. The petition stated that if the son had to sell the house to make the reimbursement, he would become homeless. The son did not testify, file a brief, or offer any other evidence in support of this petition.The court held that because the son did not offer any evidence in support of his claim of dependency the division is entitled to recover the full $10,003.66.
As I pointed out in my previous post, one reason you need an estate plan, even if there is no federal estate tax, is to provide for the care of your dependents. A qualified, experienced estate planning/elder law attorney will help you begin documenting the extent of support and relationship between you and your potential dependents. Additionally, after your passing, this estate planning attorney can help assist your personal representative in proving dependency relationships. While in In the Estate of Shirley Marie Smith the son was represented by legal counsel, I would not characterize it as effective legal counsel. Again building a strong relationship with your estate planning attorney can help ensure that your dependents will have a qualified and effective advocate in the future.
– The State Line Lawyer
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