The question every Florida family asks before applying for Medicaid is whether the state will take Mom's house, and the honest answer is usually no, but only when the planning is done right. "Will the state take my mom's house?" is the fear; Florida's law is the reason the answer can be no. Florida pairs an aggressive federal estate-recovery mandate with the strongest constitutional homestead protection in the country. The result is a system where families who understand the rules keep the home for the next generation, and families who don't can lose hundreds of thousands of dollars at probate. This guide walks through every piece of the 2026 framework: what Florida recovers for, what it can't, the homestead carve-out that makes Florida unusual, the Lady Bird Deed that anchors most planning, and the ten legitimate techniques families use to protect assets without violating the 60-month look-back.
The 60-second version
Florida's Medicaid Estate Recovery Program (MERP) is the state's mechanism for getting back, after death, what it paid for a Medicaid recipient's long-term care during life. The federal government requires every state to have one (OBRA 1993, codified at 42 U.S.C. §1396p(b)). Florida's version is codified at Fla. Stat. §409.9101.
But Florida's MERP is unusually narrow because:
- It only attaches to assets that go through probate, Florida elected not to use the federal "expanded estate" option, so anything passing outside probate is untouchable.
- The constitutional homestead descends outside probate to a surviving spouse or lineal descendant, meaning the family home, in the typical case, is fully protected.
- Florida does not file pre-death liens, there's no TEFRA-lien practice in Florida, so the home cannot be encumbered while the recipient is alive.
Most families with a basic estate plan in Florida, a Lady Bird Deed on the home, beneficiary designations on retirement accounts, joint tenancy or tenancy by the entireties on bank accounts, end up with zero MERP exposure. The families who lose homes to MERP are typically (a) those with no plan and a non-spouse, non-lineal-descendant heir, (b) those with a plain revocable living trust who didn't pair it with deed planning, or (c) those with significant non-homestead assets in probate.
This guide walks through everything in detail.
What MERP actually is
That last sentence is the textual hook that makes the Florida constitutional homestead protection trump MERP. Without it, Article X §4 might still produce the same result through case law, but the statute itself recognizes the constitution's primacy.
What Florida recovers for
The federal mandatory floor and Florida's elections produce this practical scope:
| Service | Recoverable in Florida? |
|---|---|
| Nursing facility services (age 55+) | Yes, federally mandatory |
| Home and community-based services / SMMC LTC waiver (age 55+) | Yes, federally mandatory |
| Hospital and prescription drug services received while on LTC (age 55+) | Yes, federally mandatory |
| ICF/IID services (age 55+) | Yes |
| Other Medicaid services age 55+ (MAGI, MEDS-AD, Medically Needy non-LTC) | Theoretically yes, but practical recovery is concentrated on LTC |
| Medicare Savings Program cost-sharing (QMB/SLMB/QI) | No, federally barred under 42 U.S.C. §1396p(b)(1)(B)(ii) |
| Any service received before age 55 | No, statutory cutoff |
The practical takeaway: MERP exposure is overwhelmingly an LTC-population issue. A senior who was on Medicaid only for Medicare-premium help (an MSP) has zero MERP exposure. A senior who was on Medicaid for routine acute care after age 55 has theoretical exposure but is rarely pursued. A senior who was on Medicaid LTC, nursing home, ALF, home-and-community-based services, is the typical recovery target.
Florida is a probate-only state, what that means
Federal law (42 U.S.C. §1396p(b)(4)) gives every state two options for defining "estate" for recovery purposes:
- Option A (narrow): the probate estate only, assets that pass through probate court
- Option B (expanded): probate plus jointly-held property, retained life estates, living trusts, and other non-probate transfers
Florida elected Option A, the narrow probate-only definition. The hook is the §409.9101 cross-reference to "part VII of chapter 733", Florida's Probate Code creditor-claim provisions, which by its nature only reaches probate assets.
This single election is the most consequential fact in Florida MERP planning. Anything that bypasses probate is permanently beyond AHCA's reach.
Probate-bypass mechanisms (all unreachable by MERP)
FAQ
Two or more people own property together; when one dies, the survivor takes full ownership automatically. The deceased owner's interest never enters probate. AHCA cannot reach it.
Florida note: Florida married couples default to tenancy by the entireties (TBE) for jointly-titled property, which is a stronger version of JTWROS. TBE not only avoids probate but also offers creditor protection during life from the individual creditors of either spouse.
Life insurance, retirement accounts (IRA, 401(k), 403(b), pension), and annuities pay directly to the named beneficiary. They never enter probate. AHCA cannot reach them.
Practical note: Make sure beneficiaries are NAMED. If the beneficiary box is blank or the named beneficiary predeceased without an updated form, the asset defaults to the estate, and into probate.
Bank accounts, brokerage accounts, and (in many states) vehicles can be titled with a POD or TOD beneficiary. Title passes automatically at death outside probate.
The grantor conveys a life estate to themselves while retaining the power to sell, mortgage, encumber, or revoke during life. At death, title passes automatically to the named remainder beneficiary. No probate. (See dedicated section below, this is the cornerstone of FL Medicaid planning.)
The grantor conveys a future interest to a remainder beneficiary while retaining a present life estate. The remainder vests at the grantor's death, no probate. Caveat: A traditional life estate IS a transfer for the 60-month look-back, unlike a Lady Bird Deed. Use carefully.
The grantor transfers assets to a trustee under a trust the grantor cannot revoke or amend. After the 5-year look-back, the assets are not the grantor's for Medicaid purposes; at death they pass to trust beneficiaries outside probate.
Most "living trusts" are revocable, the grantor can change the terms or pull assets out. Trust assets administered by a successor trustee at death typically bypass probate. But Fla. Stat. §733.707(3) specifically provides that revocable trust assets can be reached by creditors when the probate estate is insufficient. So a plain revocable trust does NOT shield assets from AHCA the way an irrevocable trust or beneficiary designation does. The fix: pair a revocable trust with a Lady Bird Deed for the home, and use beneficiary designations + JTWROS/TBE for liquid assets, so the trust never has to be the only line of defense.
The Florida homestead protection, and why it usually defeats MERP
Florida's Article X §4 of the state constitution provides one of the strongest homestead protections in the country. Two pieces of it matter for MERP:
- Article X §4(a), the homestead is exempt from forced sale under process of any court, with narrow exceptions (taxes, mortgages, labor performed on the property).
- Article X §4(b), the homestead cannot be devised away from a surviving spouse or minor child if there is one.
When the Medicaid recipient dies, the homestead does not become an asset of the probate estate. Under Florida law, it descends automatically to constitutionally-protected heirs, in the typical case, a surviving spouse or lineal descendants, and it does so by operation of constitutional law, not by will. The Florida Third District Court of Appeal famously phrased it in Aronson v. Aronson (2012): the homestead passes "outside of probate in a twinkle of an eye."
Because the home never enters the probate estate, AHCA's §409.9101 creditor claim has nothing to attach to.
When the homestead is protected from MERP
When the homestead becomes reachable
The homestead can lose its protected character, and become reachable by AHCA, if:
- The owner abandoned it before death (moved out permanently with no intent to return), turning it from "homestead" into ordinary property in the probate estate
- The owner sold it before death (proceeds become probate assets, with cash subject to recovery)
- There are no constitutionally-protected heirs at death (no surviving spouse, no lineal descendants) AND the will devises the home to a non-protected beneficiary (a sibling, friend, or charity)
- The owner failed to file for the Florida homestead exemption during life and the property never qualified
In these cases, the home enters probate and AHCA's claim sits in line with other unsecured creditors.
The case law that built this
Three Florida cases anchor the homestead protection from MERP:
- Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), Florida Supreme Court held that homestead protection should be "liberally construed in favor of those the provision is designed to protect." A testator without a surviving spouse or minor child can devise the homestead to any member of the class of intestate heirs, including a granddaughter, even where an adult son survived.
- Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012), The "twinkle of an eye" case. The homestead passes to the surviving spouse or lineal descendants outside of probate by operation of constitutional law.
- AHCA v. Estate of Johnson, 728 So. 2d 327 (Fla. 4th DCA 1999), Notice and timeliness; AHCA must observe the same procedural deadlines as any creditor under chapter 733.
The Lady Bird Deed: Florida's most powerful planning tool
The Lady Bird Deed (formally an "Enhanced Life Estate Deed") is recognized in approximately five states, and Florida is one of them. It is the most widely-used Medicaid planning instrument for the homestead in the state.
How it works
The grantor conveys their property to themselves for life, with a remainder to a named beneficiary, but the grantor explicitly retains the power to sell, mortgage, encumber, lease, or revoke the deed during life. The grantor remains the full owner in every practical sense; the remainder beneficiary's interest is contingent on the grantor's death.
Why it works for Medicaid
A traditional life estate (without retained powers) does not produce all three benefits. The traditional version IS a look-back transfer, IS subject to potential MERP exposure depending on facts, and CAN trigger the same stepped-up basis only because of §2036. The Lady Bird Deed is strictly better for Florida Medicaid planning.
What a Lady Bird Deed does NOT do
- It does not change Medicaid eligibility (the homestead is already exempt during life if it's the primary residence and equity is within limits)
- It does not protect non-homestead property (vacation homes, rental property)
- It does not protect assets other than real property
- It does not let the grantor escape estate tax (the home is included in the gross estate)
- It does not provide creditor protection during life
A typical Florida Medicaid plan combines a Lady Bird Deed for the home with separate techniques (beneficiary designations, JTWROS/TBE, irrevocable trusts) for non-real-property assets.
Cost and process
A Florida elder-law attorney typically drafts a Lady Bird Deed for $300–$1,000 flat fee, including the title search and recording. The deed is recorded in the county where the property is located. Once recorded, the planning effect is immediate.
When MERP does collect: the recovery process step by step
When AHCA actually does pursue recovery, typically when there is a probate estate with non-exempt assets and no surviving spouse or protected child, here's how it works in practice.
FAQ
If the decedent was age 55 or older, Fla. Stat. §733.2121(3)(d) requires the personal representative to serve a copy of the notice to creditors and a copy of the death certificate on AHCA within 3 months of the first publication of the notice to creditors (unless AHCA has already filed a claim).
The mailing address: Florida Medicaid Estate Recovery Program, P.O. Box 12188, Tallahassee, FL 32317, phone 1-877-357-3268.
Once notified, AHCA has the later of:
- 3 months after the first publication of the notice to creditors, or
- 30 days after the date of service of the notice on AHCA
to file its statement of claim under Fla. Stat. §733.702. If AHCA misses the deadline, the claim is barred, the §733.702 deadlines apply to AHCA the same as any other creditor.
The 2-year ultimate bar under §733.710 also applies: regardless of notice, no claim can be filed more than 2 years after the decedent's death.
Under Fla. Stat. §733.707, creditor claims are paid in 8 priority classes. AHCA's MERP claim is Class 7 (general claim), paid after:
- Class 1: Costs of administration
- Class 2: Reasonable funeral expenses (up to $6,000)
- Class 3: Federal taxes
- Class 4: Reasonable medical expenses of the last 60 days
- Class 5: Family allowance
- Class 6: Arrearage of child support
- Class 7: Class 7 = AHCA + most other unsecured creditors
- Class 8: All other claims
Heirs or the personal representative can file a Request for Hardship Waiver. Florida's hardship factors include:
- 12-month residence test: heir made the property their primary residence for the 12 months immediately before the decedent's death (this is FL's specific test, distinct from the federal 2-year caregiver-child rule)
- Basic necessities test: recovery would deprive the heir of food, clothing, shelter, or medical care necessary for life or health
- Full-time care test: heir provided full-time care to the recipient that delayed institutionalization (child or sibling, with cohabitation of 1+ year)
- Sale-cost waiver: the costs of sale would equal or exceed the property's value
A hardship does NOT exist solely because recovery would prevent an heir from receiving an anticipated inheritance.
AHCA can settle the claim for less than the full amount in appropriate cases (negotiation through HMS). If non-exempt non-protected assets must be sold to satisfy the claim, the personal representative handles the sale; AHCA never takes title to real property under any circumstances.
Spousal protection: functionally absolute in Florida
When a married Medicaid recipient dies and is survived by a spouse, federal law (42 U.S.C. §1396p(b)(2)(A)) bars recovery during the surviving spouse's lifetime. Florida applies this federal floor.
Florida is unusual because, even after the surviving spouse dies, recovery is functionally toothless:
- The Florida homestead descended to the spouse outside probate at the recipient's death (Article X §4 / Aronson). It never entered the recipient's probate estate.
- Tenancy-by-the-entireties property became the spouse's solely by operation of law at the recipient's death.
- AHCA has no statutory mechanism to "reactivate" recovery years later, and the §733.710 2-year ultimate bar would have run long since.
In practical terms: a Florida Medicaid LTC recipient who is married, who owned the family home with their spouse as a homestead, and who held bank/brokerage accounts as TBE, will have effectively zero MERP exposure regardless of the dollar amounts.
This is dramatically different from "expanded estate" states (such as Massachusetts or Indiana under certain conditions), where the state can pursue a deferred recovery against the deceased recipient's portion of joint assets after the surviving spouse dies.
Disabled, blind, or minor child protection
Federal §1396p(b)(2)(A) defers recovery during the lifetime of:
- A surviving child under age 21
- A surviving child of any age who is blind
- A surviving child of any age who is permanently and totally disabled (within the meaning of §1614 of the Social Security Act)
Florida applies this federal floor. Combined with the constitutional homestead protection on descent to lineal descendants, this means a disabled adult child can keep the family home protected for life, a powerful planning lever for families with a disabled child caring for a parent.
Why Florida does not impose TEFRA liens
Federal law (42 U.S.C. §1396p(a)(1)(B)) authorizes states to file pre-death liens, TEFRA liens, after the Tax Equity and Fiscal Responsibility Act of 1982, on the real property of a Medicaid recipient who has been determined to be permanently institutionalized. Some states use this aggressively.
Florida does not.
Florida's §409.9101 contains no TEFRA-lien provision. AHCA has no established practice of imposing pre-death liens. Combined with the constitutional homestead protection during life (Art. X §4 prevents forced sale by creditors), there is effectively no pre-death encumbrance on a Florida Medicaid recipient's home.
The only enforcement window in Florida is post-death, via the probate creditor-claim process described above.
The 10-technique planning playbook
The combination of legal rules above produces a clean planning framework. Most Florida elder-law attorneys layer 3-5 of these techniques together depending on the family's facts.
| # | Technique | 5-year look-back effect | MERP effect | Best for |
|---|---|---|---|---|
| 1 | Lady Bird Deed | No transfer; no penalty | Bypasses probate; AHCA cannot reach | The homestead, almost always |
| 2 | Irrevocable Medicaid Asset Protection Trust (MAPT) | Transfer triggers 60-month look-back; asset is protected after look-back expires | Trust assets outside probate | Liquid assets when planning 5+ years out |
| 3 | Spousal asset transfers | No look-back applies between spouses (unlimited) | Spouse-survival pause + Aronson protection | Married couples, always |
| 4 | Caregiver-child agreement + transfer | 2 years cohabitation + care preventing institutionalization → no penalty | Transferred home is no longer recipient's asset | Adult child caregiver with documented 2-year cohabitation |
| 5 | Disabled-child trust (special-needs trust) | Transfer to/for sole benefit of disabled child of any age, no penalty | Federal-floor recovery deferral while disabled child alive | Families with a disabled child |
| 6 | Sibling-equity transfer | Sibling with equity interest + 1 year cohabitation immediately before institutionalization → no penalty | Transferred home no longer in estate | Joint-owned home with co-resident sibling |
| 7 | FMV transfer (e.g., personal-services contract) | No penalty if FMV documented | Asset removed from probate before death | Bridge planning during the look-back |
| 8 | Beneficiary designations + JTWROS + TBE | No effect on look-back | Probate-bypass | All liquid accounts |
| 9 | Revocable living trust + Lady Bird Deed combo | No look-back issues | Trust + Deed together avoid §733.707(3) trap | Standard middle-class plan |
| 10 | DRA-compliant Medicaid annuity | Eligibility tool, converts countable asset to income stream | Annuity exhausts during life | Crisis planning when over-asset |
Florida-specific cautions
- Don't rely on a revocable trust alone. Fla. Stat. §733.707(3) lets creditors reach revocable trust assets when the probate estate is insufficient. Pair with a Lady Bird Deed and beneficiary designations.
- Don't title the home jointly with an adult child during life. It triggers gift tax issues, exposes the home to the child's creditors, and creates capital gains issues if sold during the parent's life. Use a Lady Bird Deed instead.
- Don't transfer the home to a child outright more than 5 years before applying. That works (it's outside the look-back) but forfeits the stepped-up basis the family would get with a Lady Bird Deed at death.
- Don't ignore the Article X §4 devise restriction. If there is a surviving spouse or minor child, the homestead cannot be devised to anyone else. Improper devise = property descends per intestate rules anyway, which usually still produces a MERP-protected outcome but creates probate complications.
- Don't draft Medicaid documents without an attorney. Online templates ignore Florida's specific statutory and constitutional architecture. A Florida elder-law attorney is the only reliable drafter for Lady Bird Deeds, irrevocable trusts, and personal-services contracts. Typical fees: $300–$1,500 for a Lady Bird Deed; $2,500–$5,000 for an irrevocable MAPT; $500–$1,500 for a personal-services contract.
What's changing in 2026
State law: No substantive amendments to §409.9101 in the 2024 or 2025 Florida legislative sessions, and as of 5/3/2026 no MERP-amending bills have advanced in the 2026 session.
Federal law: H.R. 6951 (the "Stop Unfair Medicaid Recoveries Act") was introduced in the 119th Congress (2025-2026). It would repeal the federal MERP mandate and limit pre-death liens. As of 5/3/2026, the bill has been introduced but has not advanced. If enacted, it would dramatically alter the national MERP landscape; Florida-specific exposure would shrink further. Status: track at congress.gov/bill/119th-congress/house-bill/6951.
Eligibility-side updates relevant for planning:
- 2026 home equity limit: $752,000 (single applicant)
- 2026 income cap: $2,982/month (Qualified Income Trust required above)
- 2026 CSRA: $162,660
- 2026 gift penalty divisor: approximately $10,645/month
Frequently asked questions
In most cases, no, if the home is her constitutional homestead and there is a surviving spouse or lineal descendant heir. The home descends outside probate to the protected heir, and AHCA cannot reach it. The exceptions: she has no spouse or lineal descendants and the will gives the home to a non-protected beneficiary; she has abandoned the homestead before death; or the home was sold and the proceeds became probate assets.
The home is protected from MERP, but you still owe property taxes, maintenance, and any mortgage. If the heirs sell the home post-death, the sale proceeds belong to the heirs (not AHCA) because the home was protected. The hardship-waiver process is also available if the basic-necessities test applies.
A will alone is insufficient. The home passes through probate under a will, which means it might enter the probate estate where AHCA can claim. The constitutional homestead protection works automatically when the home descends to a protected heir, but only if it qualifies as homestead at death. The reliable approach: a Lady Bird Deed during life, which bypasses probate entirely.
This avoids probate but creates significant problems: gift tax issues (the transfer is a partial gift), capital gains issues (the child's basis is your basis, not stepped up), creditor exposure (the home becomes vulnerable to the child's creditors), and Medicaid look-back (a partial gift IS a transfer for the 60-month look-back). Lady Bird Deed achieves the same probate-bypass without these problems.
If you've named a beneficiary, no, the account passes outside probate to the named beneficiary. If the beneficiary box is blank or the named beneficiary predeceased without an updated form, the account defaults to your estate and into probate, where it's reachable. Update beneficiary designations after every major life event (marriage, divorce, death of a beneficiary, birth of a child).
When the at-home spouse dies first, the Medicaid recipient typically inherits the home (often automatically through TBE) and the home remains the recipient's homestead. After the recipient's later death, the home descends to lineal descendants outside probate, still protected. The bigger planning question is whether the at-home spouse's separate non-homestead assets need protection during the recipient's lifetime.
They are separate but related rules. The look-back is an eligibility-side rule (transfers in the 60 months before applying create a transfer penalty, delaying Medicaid coverage). MERP is a recovery-side rule (assets in the probate estate at death may be claimed back). A Lady Bird Deed is unique in that it satisfies both tests simultaneously, no look-back transfer + outside probate. Most planning techniques satisfy one but not both.
If it was titled as JTWROS with you (or POD/TOD with you as beneficiary), it passes to you outside probate, AHCA cannot reach it. If it was solely in her name with no beneficiary, it enters probate and is reachable.
The claim is whatever AHCA actually paid for medical assistance after age 55. For most Medicaid LTC recipients, the recovery amount is in the tens to hundreds of thousands of dollars, sometimes millions for very long nursing home stays. In Florida, the practical question isn't the dollar size but whether the assets are in probate. If everything is structured outside probate, the size of the claim is irrelevant, there's nothing to attach to.
Life insurance with a named beneficiary passes outside probate, not reachable. Life insurance with the estate as beneficiary (or no beneficiary named) passes through probate, reachable. Always name a person as beneficiary.
If AHCA files a claim, the probate proceeds at the standard pace (typically 6-12 months for a simple Florida estate, 1-2+ years for a complex one). Hardship waiver requests can extend this. Most recovery cases are resolved through negotiated settlement rather than litigation.
For a recovery question on an active estate: Florida Medicaid Estate Recovery Program (HMS), 1-877-357-3268, P.O. Box 12188, Tallahassee, FL 32317.
For planning before you need Medicaid: a Florida elder-law attorney. The Florida Bar Elder Law Section (eldercarelaw.org) and the National Academy of Elder Law Attorneys (NAELA) Florida chapter both maintain referral lists. Many elder-law attorneys offer free initial consultations.
For free legal aid in active recovery: Florida Senior Legal Helpline 1-888-895-7873.
Bottom line
Florida's Medicaid Estate Recovery Program is fearsome on paper and gentle in practice, for families who plan. The constitutional homestead protection, the probate-only recovery structure, and the Lady Bird Deed combine to make Florida one of the easier states in America to keep the family home through Medicaid LTC.
The families who lose homes to MERP in Florida are almost always families that did no planning, made errors with revocable living trusts, or had no constitutionally-protected heirs. The families who follow the playbook, Lady Bird Deed on the home, beneficiary designations on accounts, TBE for couples, irrevocable trusts for liquid assets that need 5-year shelter, typically have zero MERP exposure regardless of the size of their parent's Medicaid bill.
Plan early, plan with a Florida elder-law attorney, and don't trust generic online templates. Estate recovery in Florida is a high-stakes game with clear rules, but only if you know what they are.
Learn More
- Florida Medicaid Programs Overview
- Florida Long-Term Care Waiver
- Florida Medicaid Eligibility & Income Limits
- How to Apply for Florida Medicaid
- What Florida Medicaid Covers
- Florida Medicaid Managed Care Plans
Find personalized help navigating Florida Medicaid estate recovery at brevy.com.
The information on Brevy.com is for educational purposes only and is not a substitute for professional legal, financial, or medical advice. Rules vary by state and program and change frequently. Always verify with the relevant agency or a qualified professional. Brevy is not a law firm, financial advisor, or healthcare provider.