Medicare's Right to Recovery From An Estate

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Written By: Epiq Subject Matter Experts


My mother recently passed away and has left a small estate of three properties and some certificates of deposit to me and my two bothers. I just learned from an Arkansas lawyer that our estate will go into probate for all creditors to be paid, including Medicare. Can Medicare make a claim? We spend our whole working lives paying into Medicare and now I hear that after my mother dies she now has to repay for the services she needed while disabled. Where can I find this federal or state law that states that Medicare can take an estate?  


Medicare does not have a right to recover from the estate unless your mother or her estate has filed a claim against another party for injuries sustained as a result of their wrongdoing and received a settlement. The only time that Medicare can assert a claim (lien) against the estate is IF your mother was injured, initiated a claim against whoever was responsible for the injury, and received a settlement. If Medicare paid medical bills that were for the treatment of the injury, then Medicare can recover those payments from the settlement and the estate.

The regulations regarding Medicare's right to reimbursement on conditional overpayments in liability situations can be found under 42 CFR 411.23, 411.24, 411.26, 411.37, 411.50, 411.52, and 411.54. It is important to note that "liability insurance" means insurance (including a self-insured plan) that provides payment based on legal liability for injury or illness or damage to property. It includes but is not limited to automobile liability insurance, uninsured motorist insurance, underinsured motorist insurance, homeowners' liability insurance, malpractice insurance, product liability insurance, and general casualty insurance. These regulations also establish that Medicare would be secondary to no-fault insurance, which is defined as "insurance that pays for medical expenses for injuries sustained on the property or premises of the insured." This insurance includes but is not limited to automobile, homeowners, and commercial plans. This insurance is sometimes called "medical payments coverage," "personal injury protection," or "medical expense coverage" (42 CFR 411.50).

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