Massachusetts Medicaid Estate Recovery (MassHealth) 2026

Massachusetts Medicaid estate recovery is how MassHealth seeks reimbursement, after a member's death, for what it paid for that member's care. Since the 2024 Long-Term Care Act, it reaches far less than it used to: for members who died on or after August 1, 2024, recovery is limited to federally mandated long-term-care services (nursing facility care, home and community-based services, and related hospital and prescription-drug costs), and a member who received only general MassHealth coverage and never entered long-term care leaves no estate-recovery claim at all. Recovery runs against the probate estate only, under M.G.L. c. 118E § 31 (as amended by Chapter 197 of the Acts of 2024) and 130 CMR 515.011.1

What This Guide Covers

Medicaid estate recovery is a federal requirement, not a Massachusetts invention. Federal law (42 U.S.C. 1396p(b), enacted by the Omnibus Budget Reconciliation Act of 1993, or OBRA '93) requires every state Medicaid program to recover from the estate of a deceased member who was 55 or older when they received nursing facility services, home and community-based services (HCBS), and related hospital and prescription-drug services, and from a member of any age who was permanently institutionalized.2 In Massachusetts, the program is run by MassHealth and is governed by M.G.L. c. 118E § 31 (as amended by Chapter 197 of the Acts of 2024) and 130 CMR 515.011.

The Massachusetts estate recovery landscape underwent its most significant transformation in decades in 2024. Chapter 197 of the Acts of 2024 (the Long-Term Care Act, "An Act to Improve Quality and Oversight of Long-Term Care") was signed September 6, 2024, became effective December 5, 2024, and applies retroactively to estates of MassHealth members who died on or after August 1, 2024. The reform narrowed Massachusetts estate recovery from a broad regime that previously sought reimbursement for all MassHealth services received at age 55 or older down to the federally mandated minimum: nursing facility services, home and community-based services, and related hospital and prescription-drug services.1

This narrowing is a major win for Massachusetts families. Under the old regime, a MassHealth member who received MassHealth coverage for general medical services at age 55 or older, even if they never entered a nursing facility, could leave their family facing a substantial post-death claim. Under the new regime, families of members who received only general medical coverage and no long-term care face no estate recovery at all.1

For families whose loved one died before August 1, 2024, the prior broader regime applies, and recovery for general MassHealth services received at age 55 or older remains in scope. For families whose loved one died on or after August 1, 2024, the new narrower regime applies.1

Three additional features of the Massachusetts estate recovery framework distinguish it from peer states and shape what families should expect:

1. Probate-only recovery. Under 130 CMR 515.011, MassHealth recovers from the member's probate estate only. Property held jointly with rights of survivorship, in tenancy by the entirety, in a properly drafted irrevocable trust, in a beneficiary-designated account (POD/TOD bank account, IRA, or life insurance), or as a life estate remainder is generally not subject to MassHealth recovery, because such property does not pass through probate. Federal law lets a state expand its estate definition to non-probate assets, but Massachusetts has chosen not to adopt that expanded-estate option, a meaningful protection that several other states do not extend.1,2

2. The $25,000 small-estate auto-waiver. Effective for deaths on or after May 14, 2021, MassHealth automatically waives recovery for probate estates valued at $25,000 or less under 130 CMR 515.011(B)(2). This is the cost-not-effective rule. The threshold is gross probate estate value, self-certified on the probate petition under penalties of perjury, meaning it is largely self-executing.1

3. Three SJC decisions reshape practice (2017-2023). The Massachusetts Supreme Judicial Court (SJC) has handed down three estate-recovery decisions that every family and elder-law practitioner needs to know:3

   • Daley v. Secretary of EOHHS / Nadeau v. Director of MassHealth, 477 Mass. 188 (2017), properly drafted irrevocable trusts retaining occupancy or life-estate interests do not make trust assets countable for MassHealth eligibility.
   • In the Matter of the Estate of Kendall, 486 Mass. 522 (2020), MassHealth is bound by the Massachusetts Uniform Probate Code's three-year statute of repose under M.G.L. c. 190B § 3-108, so it cannot pursue claims against estates more than three years after death.
   • In the Matter of the Estate of Mason, 493 Mass. 148 (2023), a MassHealth lien on real property under 130 CMR 515.012 cannot be enforced after the member's death if the property was not sold during the member's lifetime.

This guide explains how Massachusetts estate recovery works in 2026, what the 2024 reform changed, what assets are and are not subject to recovery, the three caselaw lessons that shape practice, the three hardship waiver categories, the operational mechanics of the MassHealth Estate Recovery Unit, the realistic timeline from death to claim resolution, and what families can do to plan, respond, and protect inheritance.

The 60-Second Version

• Massachusetts MassHealth estate recovery operates under M.G.L. c. 118E § 31 (as amended by Chapter 197 of the Acts of 2024) and 130 CMR 515.011.1
• The 2024 reform applies retroactively to deaths on or after August 1, 2024 and narrows recovery to the federally mandated minimum: nursing facility services, HCBS, and related hospital and prescription-drug costs.
• For deaths before August 1, 2024, the prior broader regime applies, with recovery for all MassHealth services received at age 55 or older.1
• Probate-only recovery: joint property, tenancy by the entirety, properly drafted irrevocable trusts, beneficiary-designated accounts, and life estate remainders are out of scope.
• $25,000 auto-waiver: probate estates valued at $25,000 or less are automatically waived under 130 CMR 515.011(B)(2) (effective for deaths on or after May 14, 2021).1
• Three hardship waiver categories under 130 CMR 515.011(F): residence (133% of the federal poverty level, or FPL, in family income), care-provided (an heir who provided care that delayed long-term-care admission), and income-based (below 400% FPL, with a partial waiver up to $50,000 per heir and $100,000 per estate).1
• Hardship waivers must be filed within 60 days of MassHealth's Notice of Claim.1
• Mason 2023 (SJC): a MassHealth lien on real property cannot be enforced after death if the property was not sold during the member's lifetime.3,4
• Kendall 2020 (SJC): MassHealth is bound by the three-year Massachusetts Uniform Probate Code statute of repose and cannot pursue claims more than three years after death.3
• Daley/Nadeau 2017 (SJC): properly drafted irrevocable trusts with retained occupancy or a life estate do not defeat MassHealth eligibility.3
• MassHealth Estate Recovery Unit: P.O. Box 15205, Worcester, MA 01615-0205 | 617-348-5230.5
• The 60-day Notice of Claim deadline is the single most consequential family deadline; failure to respond is treated as an admission of the claim's validity.

What the 2024 Long-Term Care Act Changed

The single most important development in Massachusetts estate recovery in the past two decades is Chapter 197 of the Acts of 2024, the Long-Term Care Act ("An Act to Improve Quality and Oversight of Long-Term Care"). It was signed September 6, 2024, became effective December 5, 2024, and applies retroactively to estates of MassHealth members who died on or after August 1, 2024.1

The Act amended M.G.L. c. 118E § 31 to limit estate recovery, for members age 55 or older when they received the assistance, to the federally mandated minimum: nursing facility services, home and community-based services, and related hospital and prescription-drug services for which estate recovery is required under 42 U.S.C. 1396p. Recovery still applies, regardless of age, to the cost of institutional care for a member who was permanently institutionalized.1,2

The Act also directed MassHealth to exempt the costs of CommonHealth (MassHealth's coverage for working people with disabilities) and Personal Care Attendant (PCA) services from estate recovery. These additional exemptions require federal approval before they take effect, and that approval was still pending when the change was last documented, so families should not assume a CommonHealth or PCA exemption is in force without confirming the current status directly with MassHealth. (MassHealth issued implementation guidance, Eligibility Operations Memo EOM 25-09, to apply the Long-Term Care Act's rules.)1

What the reform changes in practice:

• A MassHealth member who received only general medical services at age 55 or older (no nursing facility care, no HCBS, and no related hospital or prescription-drug costs) and died on or after August 1, 2024: no estate recovery.1
• A MassHealth nursing facility resident who died on or after August 1, 2024: estate recovery applies, as before, to nursing facility services and related hospital and prescription-drug costs.1
• A member who died before August 1, 2024: the broader pre-reform regime applies, reaching all MassHealth services received at age 55 or older.1

What the reform does NOT change:

• Probate-only scope (still under 130 CMR 515.011, joint property, trusts, beneficiary-designated accounts remain outside recovery).
• The $25,000 auto-waiver under 130 CMR 515.011(B)(2).1
• The three hardship waiver categories under 130 CMR 515.011(F).
• The 60-day Notice of Claim response deadline.
• Spousal and minor-child protection.
• Massachusetts's status as a probate-only-recovery state.
• The pre-2024 SJC caselaw on TEFRA liens, statute of repose, and irrevocable trusts.

Pending regulatory amendments: As of May 2026, MassHealth has not yet finalized amendments to 130 CMR 515.011 to formally codify the LTC Act statutory changes. The amended statute and EOM 25-09 control in the interim. Mass Legal Services has been tracking this regulatory amendment process; readers and elder-law practitioners should monitor mass.gov for final rule publication.

Pre-Reform vs Post-Reform: What's Recoverable in Each Regime

The August 1, 2024 boundary divides Massachusetts estate recovery into two regimes. Families and practitioners must know which regime applies to their case.

Pre-Reform Regime (Deaths Before 8/1/2024)

Massachusetts's pre-reform broader regime put it among the minority of states that, before the 2024 Long-Term Care Act, pursued estate recovery beyond the federal mandate. The Commonwealth's choice to recover for all services after age 55, not just long-term care, drew years of advocacy from elder-law and disability groups, MassHealth members' advocates, and the legislators who championed the reform.1

Post-Reform Regime (Deaths On/After 8/1/2024)

The narrowing has dramatic implications for families whose loved one received MassHealth coverage but never entered long-term care. Pre-reform, MassHealth could pursue an estate claim for years of general medical coverage (primary care visits, specialist care, hospital stays, prescription drugs) received at age 55 or older. Post-reform, that claim does not exist.1

Determining Which Regime Applies

Date of member's death is the controlling fact. If the member died on or after August 1, 2024, the post-reform regime applies, even if MassHealth has not yet filed a Notice of Claim, even if the probate is years from filing, even if the services in question were received decades ago. The reform is retroactive to the date of death, not the date of service.

If the member died on July 31, 2024, or earlier, the pre-reform regime applies, even if probate filing or claim filing happens in 2026.

For families currently navigating an active claim from a pre-2024 death, the new narrower regime does not apply. Hardship waivers, the $25,000 auto-waiver, and the Kendall and Mason decisions still apply, but the underlying scope of what is recoverable remains the broader pre-reform list.1

Probate-Only Scope: The Asset-by-Asset Walkthrough

The single most important fact about Massachusetts estate recovery is this: MassHealth recovers from the probate estate only. M.G.L. c. 118E § 31 defines the estate as "all real and personal property and other assets includable in the decedent's probate estate." Federal law lets a state expand its estate definition to non-probate assets such as joint tenancy, life estates, and living trusts, but Massachusetts has chosen not to adopt that expanded-estate option.1,2

Asset-by-Asset Coverage

Important Caveats

Caveat 1: irrevocable trusts have eligibility implications during life. While properly drafted irrevocable trusts protect assets from post-death recovery (because the assets are not in the probate estate), they can still create eligibility issues during the member's lifetime if MassHealth deems retained interests countable. The Daley/Nadeau decision in 2017 (discussed below) clarified the boundaries. Improperly drafted trusts that retain too much control can disqualify the member from MassHealth eligibility entirely.3

Caveat 2: asset re-titling near the time of death is scrutinized. If a member or their family transfers assets out of probate-vulnerable forms (for example, adding a joint owner to a bank account) shortly before death, MassHealth or a probate court may scrutinize the transfer. Genuine, longstanding asset structures hold up better.

Caveat 3: trust assets can be recovered if the trust was set up improperly. The Daley/Nadeau opinion specifically blessed irrevocable trusts retaining occupancy or life-estate interests, but trusts retaining other forms of control or benefit may still be deemed countable. Elder-law counsel matters.3

Caveat 4: the Medicaid lookback applies separately, for eligibility. Asset transfers to non-spouse parties in the years before a MassHealth application can trigger transfer penalties that delay eligibility. This is distinct from estate recovery, which operates after death, but the same underlying transfer can carry both eligibility and estate-recovery implications. Confirm the current lookback period and penalty rules with MassHealth or an elder-law attorney before transferring assets.

The Practical Implication

For Massachusetts families planning ahead, the asset-by-asset table is a planning roadmap. Property held in tenancy by the entirety (between spouses), joint tenancy with rights of survivorship, well-structured irrevocable trusts (funded well before institutionalization), beneficiary-designated bank accounts, and named-beneficiary IRAs and life insurance all pass outside probate and outside MassHealth's recovery reach.1

The single most powerful planning move for married couples is to hold the marital home as tenancy by the entirety (the default Massachusetts marital deed structure) so the surviving spouse takes the property automatically without probate. This protection is long established, and the marital home is usually the largest single asset in a middle-class Massachusetts estate.

The $25,000 Small-Estate Auto-Waiver

Effective for deaths on or after May 14, 2021, MassHealth automatically waives recovery for probate estates valued at $25,000 or less under 130 CMR 515.011(B)(2).1 The regulatory text reads:

"Effective for dates of death on or after May 14, 2021, in probate estates of members where the probate petition certifies under penalties of perjury that the total assets in a member's estate are valued at $25,000 or less, MassHealth has determined that it is not cost effective to pursue recovery."1

Mechanics

1. The threshold is gross probate estate value, not net of debts. If the deceased had a $40,000 home and $20,000 in mortgage debt against it, the gross probate estate value for auto-waiver purposes is $40,000, above the $25,000 threshold. (That same $40,000 home with $35,000 in mortgage debt has only $5,000 in net equity, and a hardship waiver may apply if other criteria are met.)1

2. The threshold applies only to assets in the probate estate. Joint property, trust assets, and beneficiary-designated accounts are all outside probate and all outside the threshold calculation. A family with substantial wealth in joint property and trusts but only $15,000 in the deceased's solely-owned probate estate qualifies for the auto-waiver.1

3. It is largely self-executing through probate certification. The probate petition, filed under penalties of perjury, certifies the estate value. The MassHealth Estate Recovery Unit, upon receiving notice of probate, declines to file a Notice of Claim if the estate value is at or below $25,000. No separate hardship application is required.1

4. A practitioner-recommended best practice: the personal representative should send a copy of the probate petition and death certificate to the MassHealth Estate Recovery Unit (P.O. Box 15205, Worcester, MA 01615-0205) by certified mail. Under M.G.L. c. 118E § 32, the petition must include a sworn statement that those documents were sent to MassHealth by certified mail.5

Prior Threshold

Before May 14, 2021, there was no comparable automatic small-estate threshold. Cases below a practical recovery threshold were handled at the unit's discretion, which sometimes declined to pursue them but had no regulatory bright-line. The $25,000 rule was a wholesale new policy in 2021, not a bump from a prior dollar amount.1

Practical Impact

The $25,000 threshold protects a substantial share of Massachusetts middle-class estates. A typical decedent who held the marital home as tenancy by the entirety with their surviving spouse, had an IRA with a named beneficiary, held bank accounts jointly with rights of survivorship, and held only a modest sole-name checking account at death may well have a gross probate estate below $25,000, qualifying for the auto-waiver.1

Statewide implementation data on the auto-waiver is not publicly available, but practitioners report that a meaningful percentage of MassHealth members' estates fall under the threshold once non-probate assets are excluded. This was, in effect, MassHealth's first cost-not-effective rule and a major consumer protection.

Three Hardship Waiver Categories Under 130 CMR 515.011(F)

For estates above the $25,000 auto-waiver threshold, three hardship waiver categories under 130 CMR 515.011(F) provide additional protection. All three were created or expanded effective May 14, 2021, and all three eliminated the previous two-year conditional waiting period that had operated under prior law.1

Category 1: Residence and Financial Hardship Waiver

Criteria (all must apply, claims presented on/after 5/14/2021):

• Sale of real property would be required to satisfy the claim;
• An individual was using the property as a principal place of residence on the date of the member's death;
• That individual lived in the property continuously for two years prior to the member's admission OR for two years prior to the member's death;
• That individual continues to live in the property when MassHealth presents the claim;
• That individual's family group gross annual income is at or below 133% of the federal poverty level (FPL);
• That individual is inheriting an interest in the property.1

Effect: Full waiver of MassHealth's claim against the property. The heir keeps the inherited interest in the home.1

Practical example: A daughter who had lived in her mother's two-family home for five years before her mother entered a nursing facility, continues to live there as her primary residence, has a household income at 130% of the FPL, and inherits the property would qualify for a full waiver.1

Category 2: Care Provided Waiver

Criteria (all must apply, created 5/14/2021):

• Heir or devisee is inheriting a legal interest in the deceased member's home;
• That heir resided in the member's home on a continual basis for two years prior to admission/death;
• That heir provided a level of care that avoided or delayed the member's admission to a long-term care facility;
• That heir continues to reside in the home;
• That heir is not being pressured by other heirs to sell;
• Sale of the property would be required to satisfy the claim.

Effect: Full waiver of MassHealth's claim against the property.1

Practical example: A son who moved in with his ailing father in 2018, provided daily care that delayed his father's nursing facility admission until 2024, continues to live in the home in 2026, inherits a 50% interest in the home through his father's will, and is not being pressured by other heirs to sell would qualify for a full waiver. The level of care that avoided or delayed admission can be documented through medical records, statements from the member's physician, and family testimony. (A related federal rule, the caregiver-child exception under 42 U.S.C. 1396p(c)(2)(A)(iv), separately lets a parent transfer the home during life to an adult child who lived there for at least two years immediately before institutionalization and who, as determined by the state, provided care that kept the parent out of an institution, without a transfer penalty.)1,2

Category 3: Income-Based Financial Hardship Waiver

Criteria (created 5/14/2021):

• Heir or devisee is inheriting an interest in the member's estate;
• The heir's family group gross income is below 400% of the federal poverty level for the two-year period prior to MassHealth's notice of claim filing.1

Effect: A partial waiver equal to the heir's interest in the estate, up to $50,000 per qualifying heir, with a maximum of $100,000 per estate if multiple heirs qualify.1

Practical example: A claim of $90,000 against an estate with two heirs, each inheriting 50% ($45,000 each), where both heirs have family group income below 400% FPL. Because the $50,000-per-heir cap exceeds each heir's $45,000 interest, each interest is fully waived. Effective claim: $0.1

Practical example 2: A claim of $300,000 against an estate with one heir inheriting 100%, whose family group income is below 400% FPL. The per-heir cap waives $50,000, and MassHealth recovers $250,000 from the remaining estate value.1

Application Mechanics

Form: "MassHealth Estate Recovery Hardship Waiver Request Form" (no number designation; available at mass.gov/doc/masshealth-estate-recovery-hardship-waiver-request-form-0/download). The form covers all three categories.

Filing party: Court-appointed personal representative or public administrator. Each heir who may qualify under categories 1, 2, or 3 must be separately identified on the form.

Deadline: Within 60 days of MassHealth's notice of claim. This is the single most consequential family deadline in Massachusetts estate recovery; failure to file on time is treated as an admission of the claim's validity.1

Determination: MassHealth reviews the application and issues a determination. Approval results in a full or partial waiver as applicable. A denial may be appealed to the Board of Hearings.

Multiple-heir scenarios: Each heir applies separately. The estate qualifies for at most one of categories 1 or 2 (full waivers, typically only one heir's residence triggers them); category 3 (income-based partial) may apply to multiple heirs at once, subject to the $100,000-per-estate cap.1

Reform Context

Before 5/14/2021, the residence waiver required a 2-year conditional waiting period during which the heir's situation was subject to re-review, meaning the property remained encumbered for two years after death. The 2021 reform eliminated this waiting period when the criteria are met at the time of the claim, meaning approved waivers result in a clear release of the claim. This was a meaningful procedural improvement.

Categories 2 (care provided) and 3 (income-based partial) were entirely new in 2021, significant expansions of the prior limited waiver framework.1

The Three SJC Decisions That Shape Practice

Massachusetts Supreme Judicial Court decisions in 2017, 2020, and 2023 fundamentally shape the current estate recovery landscape. Every elder-law practitioner and informed family should know these three cases.

Daley v. Secretary of EOHHS / Nadeau v. Director of MassHealth, 477 Mass. 188 (May 30, 2017)

Holding: "Neither the grant in an irrevocable trust of a right of use and occupancy in a primary residence to an applicant nor the retention by an applicant of a life estate in his or her primary residence makes the equity in the home owned by the trust a countable asset for the purpose of determining Medicaid eligibility for long-term care benefits."

Significance: This is the foundational MA case establishing that a properly drafted irrevocable trust holding the family home, retaining the member's right of use and occupancy or a life estate interest, does NOT defeat MassHealth eligibility. The decision blessed the use of "Medicaid asset protection trusts" (irrevocable trusts retaining occupancy rights) in Massachusetts.

Practical implication for estate recovery: Property held in such properly drafted irrevocable trusts is outside the probate estate at death, so MassHealth cannot recover against the trust assets. Daley/Nadeau is the doctrinal foundation for irrevocable-trust planning as an estate-recovery mitigation strategy.3

Caveats: The trust must be drafted carefully to retain only those interests blessed by Daley/Nadeau and not retain other forms of control or benefit that would make the assets countable. Elder-law counsel matters. The trust must also be funded well ahead of any MassHealth application to clear the Medicaid lookback period and avoid transfer penalties.3

In the Matter of the Estate of Kendall, 486 Mass. 522, SJC-12881 (December 28, 2020)

Holding: MassHealth, like any other creditor, is bound by the Massachusetts Uniform Probate Code's three-year statute of repose under M.G.L. c. 190B § 3-108. It may not seek estate recovery against an estate more than three years after the member's death.3

Significance: Kendall imposed the first hard time limit on MassHealth estate recovery claims. Before Kendall, MassHealth could (and sometimes did) pursue claims many years after death, particularly when probate was delayed or when the estate's only asset was real property the family had been carrying.3

Practical implication for families: If MassHealth fails to file a Notice of Claim within three years of the member's death, the claim is barred. Families navigating estate recovery should track the date of death and the three-year mark carefully; a claim filed after the three-year limit may be unenforceable.3

Practical implication for personal representatives: Personal representatives are still required to send the probate petition and death certificate to the MassHealth Estate Recovery Unit by certified mail under M.G.L. c. 118E § 32, regardless of timing. The Kendall holding does not relieve the personal representative of statutory notification duties, but it does limit MassHealth's enforcement window.5

In the Matter of the Estate of Frances R. Mason, 493 Mass. 148, SJC-13439 (December 13, 2023)

Two holdings:

1. The three-year statute of repose recognized in Kendall does not apply retroactively to bar claims against estates of members who died before Kendall. The member in Mason had died in 2008 and MassHealth filed its claim in 2017; the SJC ruled the pre-Kendall claim was not barred by the later-recognized statute-of-repose rule.3

2. A MassHealth lien on real property under 130 CMR 515.012 cannot be enforced after the member's death if the property was not sold during the member's lifetime. MassHealth's authority to enforce the lien arises only on a sale during life, so the lien cannot reach post-death sale proceeds.4,3

Significance of the second holding (the more impactful for current practice): Before Mason, MassHealth had asserted that these liens survived death and could be satisfied from post-death property-sale proceeds. The 2023 ruling reversed that expectation. Families should not pay a MassHealth lien on real property that was not sold during the member's lifetime; it is not enforceable after death.4

Practical implication: If your loved one had a MassHealth lien on real property and the property was not sold during their lifetime, the lien cannot be enforced after death. Proceeds from a post-death sale are not subject to it. The estate may still face a regular post-death recovery claim against the probate estate, but the lien is no longer a separate enforcement vehicle.4

Caveat: If the property was sold during the member's lifetime (for example, the family sold the home to fund care), MassHealth's lien may have been triggered and satisfied at that time. Mason's holding applies specifically to the situation where the property was held until the member's death.4

What These Three Cases Mean Together

Daley/Nadeau, Kendall, and Mason combine to make Massachusetts a more family-protective state for estate recovery than its statutory text alone would suggest. The case-by-case takeaway:

• Daley/Nadeau: properly structured irrevocable trusts with retained occupancy work for asset protection.
• Kendall: MassHealth has only three years from death to file claims.
• Mason: a MassHealth lien on real property held until death cannot be enforced after death.

Combined with the 2024 Long-Term Care Act narrowing the recovery scope, these three decisions and one statutory reform represent a substantial swing in a family-favorable direction over the 2017-2024 period.3

The Massachusetts Medicaid Estate Recovery Unit: How It Operates

The MassHealth Estate Recovery Unit (ERU) is the operational entity that receives probate notifications, files claims, processes hardship waivers, and resolves recovery cases.

Mailing address:

MassHealth Estate Recovery Unit P.O. Box 15205 Worcester, MA 01615-0205

Phone: 617-348-5230.5

Online portal: None. Correspondence with the unit is paper-driven (mail and fax).

Workflow:

1. Probate petition filed. Family or attorney files probate petition in the appropriate Massachusetts probate and family court.

2. Personal representative notification to MassHealth. Under M.G.L. c. 118E § 32, a petition for probate or administration must include a sworn statement that copies of the petition and death certificate were sent to MassHealth by certified mail.5

3. The unit pulls the medical billing printout. Upon receiving probate notice, staff pull a printout of the deceased member's MassHealth-paid services, apply the Long-Term Care Act limitations (for deaths on or after August 1, 2024), exclude Medicare cost-sharing for Medicare Savings Program enrollees, and calculate the proposed claim.2

4. The unit files a Notice of Claim. Under M.G.L. c. 118E § 32, MassHealth files its written statement of the amount claimed within four months after approval of the personal representative's official bond (alternatively, it may commence an action within one year of death). The Notice specifies the dollar amount sought.5

5. The personal representative responds within 60 days. The personal representative has 60 days from the Notice of Claim to:1

   • Pay the claim;
   • File a hardship waiver application;
   • Contest the claim (for example, dispute the billing printout's accuracy or service categorization, or raise the Kendall statute-of-repose defense);
   • Request an alternative payment structure (a case-by-case promissory note secured by a mortgage);
   • Apply for the auto-waiver if the estate value is at or below $25,000.

6. MassHealth issues a determination and the case resolves. Hardship waiver determinations are issued, claim disputes are resolved through correspondence or, if necessary, the Board of Hearings, and any settlement or alternative payment is negotiated case-by-case.

7. Interest accrual. Statutory interest on a Massachusetts civil judgment runs at 12 percent per annum under M.G.L. c. 231 § 6B.5

8. Probate distribution. Once the claim is resolved (paid, waived, or compromised), the estate may be distributed to heirs.

Critical practitioner tactic: review the billing printout. Practitioners report that these printouts often contain errors, duplications, or services that should be excluded under the post-2024 narrower scope. Always request the underlying billing printout and review it carefully before paying or waiving the claim.

Critical practitioner tactic: verify post-2024 service categorization. For deaths on or after August 1, 2024, push back on any non-long-term-care charges that appear in the printout: general medical services for members age 55 or older who were not in long-term care should be excluded.1

The Realistic Timeline: Death to Claim Resolution

The 60-day Notice of Claim deadline is the single most consequential family deadline. Failure to respond within 60 days is treated as an admission of the claim's validity. Even if the family later applies for a hardship waiver or contests the claim, the 60-day window has passed and the procedural posture is much weaker.1

The three-year statute of repose (Kendall) is the outer wall. If MassHealth has not filed a Notice of Claim within three years of the member's death, the claim is barred. Families should track the three-year mark.3

Spousal and Family Protection: Deferral, Not Permanent Waiver

Federal and state law defer estate recovery during the life of certain protected family members.

Under 130 CMR 515.011(C), "Recovery will not be required until after the death of a surviving spouse, if any, or while there is a surviving child who is younger than 21 years old, or a child of any age who is blind or permanently and totally disabled." This mirrors the federal mandate in 42 U.S.C. 1396p(b)(2) that recovery may be made only after the death of a surviving spouse and only when there is no surviving child who is under 21 or who is blind or permanently and totally disabled.1,2

What This Means in Practice

1. Spousal deferral is not a permanent waiver; it is a deferral. When the surviving spouse dies, MassHealth's recovery right against the original member's estate reactivates. In practice, though, the original member's probate estate has usually been distributed to the surviving spouse and others by then, so there is often nothing left in the original member's estate to recover from.1

2. Asset re-titling during the spouse's lifetime matters. If the surviving spouse re-titles assets that came from the deceased member into their own sole name (or into joint property with new persons), those assets are now in the surviving spouse's estate, not the original member's, and are typically beyond MassHealth's reach when the spouse dies.

3. Minor or disabled-child protection ends when triggered. When a protected child reaches 21 or loses disability status, MassHealth's recovery right reactivates, though again the original member's estate may have been distributed by then.1

4. The protections do not preclude a lien during life. A MassHealth lien may still be placed during the member's lifetime against real property even if a surviving spouse or protected child exists, but it would have to await the death of the spouse or protected child to be enforced. And under Mason, if the property is held until the member's death rather than sold during life, the lien cannot be enforced after death anyway.4

Practical Planning

For couples planning ahead, the spousal deferral combined with probate-only scope and tenancy by the entirety produces a strong protection: when the institutionalized spouse dies, the marital home held as tenancy by the entirety passes automatically to the surviving spouse outside probate; spousal deferral protects against any direct recovery; when the surviving spouse later dies, the home is in the surviving spouse's estate (not the original member's), so MassHealth has no recovery target. This sequence eliminates estate-recovery exposure for the marital home in the typical Massachusetts middle-class scenario.

MassHealth Liens on Real Property (TEFRA Liens) Under 130 CMR 515.012

Federal law authorizes states to place pre-death liens (often called TEFRA liens, after the 1982 federal Tax Equity and Fiscal Responsibility Act) on the real property of permanently institutionalized Medicaid members. Massachusetts implements this authority under 130 CMR 515.012.4

When MassHealth May Place a Lien

All of the following conditions must be met:4

1. The member is an inpatient receiving long-term or chronic care in a nursing facility or other medical institution.

2. None of the following reside in the property:

   • A spouse;
   • A child younger than 21;
   • A blind or permanently and totally disabled child of any age;
   • A sibling who has a legal interest in the property and has lived in the home for at least one year before the member's institutionalization.

3. MassHealth determines the member cannot reasonably be expected to be discharged from the medical institution and return home (the permanent-institutionalization finding).

4. The member has received notice of the determination, including the right to a fair hearing.

Lien Filing Procedure

The lien is recorded against the property at the registry of deeds. The member receives notice and has the right to appeal the underlying permanent-institutionalization determination through a fair hearing.

Lien Release

Under 130 CMR 515.012, "The MassHealth agency will discharge a lien placed against property under 130 CMR 515.012(A) if the member is released from the medical institution and returns home." The lien is therefore conditional: it is released if the member returns to the home.4

Lien Cannot Be Enforced After Death (Mason 2023)

The most important development for current practice: In re Estate of Mason, 493 Mass. 148 (2023) held that MassHealth's authority to enforce such a lien arises only if the property is sold during the member's lifetime, so the lien cannot be enforced after the member's death if the property was not sold during life. This means:4

• If the member died and the property was not sold during life, the lien cannot be enforced. Post-death sale proceeds are not subject to it.
• If the member died after the property was sold during life, the lien may have already been satisfied from the sale proceeds at that time.
• If the member is still alive and the property is being sold, the lien must be satisfied from the sale proceeds.

The post-death lien outcome in Mason was a major shift in Massachusetts practice. Before 2023, some practitioners and families had assumed these liens carried over and could be satisfied from estate sale proceeds. After Mason, that is no longer the case.4

Practical Tactics for Families With TEFRA Liens

1. Verify the lien is current. Check the registry of deeds for the recorded lien.

2. If the member is alive and the family is contemplating a sale, engage elder-law counsel before selling. The lien must be addressed, either through MassHealth release (if the member would return home) or through claim satisfaction from the sale proceeds.

3. If the member has died and the property was held until death, the lien cannot be enforced under Mason. The estate may still face a regular post-death claim against the probate estate, but the lien is no longer a separate enforcement vehicle. Engage elder-law counsel to formally release the lien at the registry of deeds.4

4. If the member has died and the property is in the probate estate, standard post-death recovery rules apply. The auto-waiver, a hardship waiver, or other protections may apply depending on the facts.

Settlement and Negotiation Reality

The MassHealth Estate Recovery Unit operates under regulatory and statutory frameworks that constrain what it can negotiate.

Direct dollar reductions outside the regulatory waiver framework are not generally negotiable. Practitioners report that the unit does not formally negotiate dollar-amount reductions.

Alternative payment structures are handled case-by-case. Per the Boston Bar Association's practical guide, the unit may accept alternative payment solutions, such as a promissory note secured by a mortgage deed, on a case-by-case basis. This typically arises when the estate's only asset is real property and a forced sale would be impractical: the family signs a note and mortgage that lets them keep the property and pay off the MassHealth claim over time.

Pursue all available regulatory waivers first. The income-based hardship waiver (Category 3), up to $50,000 per heir and $100,000 per estate, functions in effect as a settlement by regulation. Always pursue available waivers before considering an alternative payment structure.1

An insufficient estate caps recovery. Because recovery runs against the probate estate only, MassHealth recovers what remains in the estate and does not pursue any unsatisfied balance beyond it.1

Settlement leverage points for families:

1. Validity challenges to specific charges. Review the medical billing printout; practitioners report these printouts often contain errors, and disputed charges should be removed from the claim.

2. Service categorization, especially for deaths on or after August 1, 2024. Push back on any non-long-term-care charges in the printout, such as general medical services for a member age 55 or older who was not in long-term care.1

3. Apply for every hardship waiver that is plausible.

4. Probate-creditor priority. Funeral and burial expenses, administration costs, and certain other priority claims come ahead of a MassHealth claim in the probate priority scheme.

5. The Kendall statute-of-repose defense. If the claim was filed more than three years after death (and the death was after Kendall), the claim is barred.3

Worked Example 1: The Robinson Family, $180,000 Probate Estate, Hardship Waiver Granted

This is an illustrative scenario. Eleanor Robinson, 84, lived in her two-family home in Brockton for 47 years. She entered a nursing facility in 2023 with advanced dementia and received MassHealth nursing facility coverage from 2023 until her death on October 15, 2024 (after the Long-Term Care Act's August 1, 2024 cutoff). Her daughter Lisa, 56, had moved in with her in 2018 to provide care, which delayed Eleanor's nursing facility admission by roughly three years.

Eleanor's assets at death:

• Two-family home in Brockton: $480,000 fair market value, held in Eleanor's sole name (no co-tenancy with Lisa)
• Bank accounts in Eleanor's sole name: $14,000
• IRA with Lisa as named beneficiary: $42,000 (passes outside probate)
• Personal property: $6,0001

Probate estate value: $480,000 (home) + $14,000 (bank) + $6,000 (personal property) = $500,000. (The IRA passes outside probate via its beneficiary designation.)1

MassHealth claim: roughly $180,000 in nursing facility services for 2023-2024. The estate's initial position is that it owes MassHealth $180,000.1

Hardship waiver analysis (Category 2, care provided):1

• Lisa is inheriting an interest in Eleanor's home (a 50% interest under Eleanor's will).
• Lisa resided in the home continuously from 2018 to 2024, more than the two-year requirement.
• Lisa provided care that delayed Eleanor's admission to a long-term care facility (documented through Eleanor's primary care physician's records and a statement from her social worker).
• Lisa continues to reside in the home after Eleanor's death.
• Lisa's brother, the other heir, is not pressuring a sale.
• A sale would be required to satisfy the $180,000 claim, since the estate's liquid assets are only $14,000 + $6,000 = $20,000.

Result: Lisa applies within 60 days of the Notice of Claim using the MassHealth Estate Recovery Hardship Waiver Request Form, supported by her physician's letter, residence documentation, her brother's notarized statement, and the will showing the 50/50 inheritance. The hardship waiver is granted, the $180,000 claim is fully waived, and the home is not sold.1

Outcome: The Robinson family preserves the home and the inheritance. The 2024 reform did not change the math here, since all of Eleanor's services were nursing facility care (recoverable under the federal mandate), but the care-provided waiver created in 2021 was the lifeline.

Worked Example 2: The Chen Family, $19,000 Probate Estate, $25,000 Auto-Waiver Applies

This is an illustrative scenario. Henry Chen, 78, lived in Lowell with his wife Mei in their home, held as tenancy by the entirety. Henry entered a nursing facility in 2023 with end-stage Parkinson's and received MassHealth nursing facility coverage from 2023 until his death on March 8, 2025 (after the cutoff).

Henry's assets at death:

• Home in Lowell: $385,000 fair market value, held as tenancy by the entirety with Mei (passes to Mei automatically outside probate)
• Joint checking account with Mei: $24,000 (passes to Mei outside probate)
• IRA with Mei as named beneficiary: $58,000 (passes outside probate)
• Sole-name checking account: $14,000
• 2018 Honda Accord: $5,000
• Personal property: $01

Probate estate value: $14,000 (sole checking) + $5,000 (Honda) = $19,000. The home, joint checking, and IRA all pass outside probate.1

MassHealth claim: roughly $145,000 in nursing facility services from 2023 to 2025.1

Analysis: The probate estate value of $19,000 is below the $25,000 auto-waiver threshold under 130 CMR 515.011(B)(2). Separately, Mei is the surviving spouse, so under 130 CMR 515.011(C) recovery is deferred during her lifetime in any event.1

Auto-waiver application: Mei, as personal representative, certifies on the probate petition under penalties of perjury that the gross probate estate is $19,000. The MassHealth Estate Recovery Unit declines to file a Notice of Claim because the estate falls below the $25,000 auto-waiver threshold.1

Outcome: Mei keeps the home, the joint checking, the IRA, the sole checking, and the Honda. There is no MassHealth recovery. The tenancy by the entirety home, the joint checking and beneficiary-designated IRA, the probate estate falling below $25,000, and spousal deferral all converge to fully protect the family.1

Worked Example 3: The Kowalski Family, Pre-2024 Death With Substantial Non-LTC MassHealth Spend

This is an illustrative scenario. Stanislaw Kowalski, 79, lived alone in his Worcester home after his wife's death in 2018. He received MassHealth coverage from 2019 until his death on June 12, 2024 (before the cutoff, so the pre-reform regime applies). He never entered a nursing facility, but his coverage paid for primary care visits, specialist care, hospital stays, and prescription drugs over five years.

Stanislaw's assets at death:

• Home in Worcester: $310,000 fair market value, held in Stanislaw's sole name (no co-tenants)
• Bank accounts in sole name: $52,000
• IRA with no named beneficiary: $35,000 (passes through probate by default)
• Personal property: $8,0001

Probate estate value: $310,000 + $52,000 + $35,000 + $8,000 = $405,000.1

MassHealth claim: Under the pre-reform regime, MassHealth recovers for all services received at age 55 or older, including primary care, specialists, hospital stays, and prescription drugs. The claim comes to roughly $95,000 over five years of general medical coverage with periodic high-cost hospital admissions.1

Hardship waiver analysis: Stanislaw's heirs are his three adult children, none of whom lived in the home or provided live-in care, so none qualifies for Category 1 (residence) or Category 2 (care provided). The income-based partial waiver (Category 3) might apply if an heir's family group income falls below 400% FPL for the prior two years, providing up to $50,000 per heir.1

Counterfactual under the post-reform regime: If Stanislaw had died on August 1, 2024, or later, MassHealth could only recover for nursing facility services, HCBS, and related hospital and prescription-drug costs. Because he never received long-term care, MassHealth would have no claim at all. The difference between roughly $95,000 (pre-reform) and $0 (post-reform) for the same facts, separated by a few weeks of timing, illustrates the magnitude of the 2024 reform.1

Outcome (under the pre-reform regime that actually applies): The estate pays the claim from the probate estate value, hardship waivers may reduce it, and the home may be sold to satisfy the claim, with the residual distributed to heirs.

Lesson: The August 1, 2024 boundary is consequential. Families whose loved one is in general MassHealth coverage and has not entered long-term care should understand that, under the post-reform regime, MassHealth has no estate-recovery claim for non-long-term-care services.1

Planning Options to Reduce Massachusetts Medicaid Estate Recovery Exposure

For Massachusetts families thinking ahead, several planning options can reduce or eliminate estate recovery exposure. All require execution well before institutionalization or death.

1. Tenancy by the Entirety (Married Couples)

The default Massachusetts marital deed structure for married couples. The marital home held as tenancy by the entirety passes to the surviving spouse automatically outside probate. Combined with spousal deferral, this is the strongest single protection for the marital home.

Cost: Typically built into the original deed at home purchase; if the home is currently held differently, a deed amendment can transfer to tenancy by the entirety (consult counsel, there may be assessment, gift, or eligibility implications).

2. Joint Tenancy With Rights of Survivorship (JTWROS), Other Than Marital Home

Bank accounts, brokerage accounts, real property held jointly with a designated co-owner (often an adult child) pass automatically to the surviving co-owner outside probate. This protects the asset from MassHealth recovery.

Caveat: Adding a co-owner to an asset can be considered a transfer for the 5-year lookback period under 130 CMR 520.019, potentially triggering eligibility issues if the member applies for MassHealth within 5 years. Time these structures well in advance of any potential MassHealth application.

3. Properly Drafted Irrevocable Trusts (Daley/Nadeau)

An irrevocable trust holding the family home or other significant assets, retaining the member's right of use and occupancy or a life-estate interest, can protect the assets from both eligibility countability (under Daley/Nadeau) and post-death recovery (because the assets are not in the probate estate at death).

Critical requirements:

• The trust must be irrevocable.
• The trust must be properly drafted by experienced elder-law counsel.
• The trust must be funded well before any MassHealth application, ahead of the Medicaid lookback period.
• Retained interests must be limited to those Daley/Nadeau blessed (occupancy or a life estate) and not extend to other forms of control or benefit.3

Cost: elder-law legal fees for drafting an irrevocable trust typically run into the low thousands of dollars, with modest ongoing administration costs. Get a written engagement quote before retaining counsel.

4. Beneficiary-Designated Accounts

IRAs, 401(k) accounts, life insurance, brokerage accounts (with TOD designations), and bank accounts (with POD designations) all pass outside probate to the named beneficiary. This is essentially free protection that requires only filling out beneficiary forms with each institution.

Best practice: Periodically review beneficiary designations on every account. Outdated designations (e.g., a deceased spouse still listed as primary beneficiary) can defeat the protection.

5. Life Estate Deeds

A deed transfer with retained life estate to the original owner and remainder to designated heirs (typically adult children) creates a vested remainder interest that passes automatically at death outside probate. Useful when the family wants to preserve some lifetime control while protecting the asset from post-death recovery.

Caveats: the same Medicaid lookback consideration as joint tenancy applies, and tax treatment differs (carryover versus stepped-up basis). Consult elder-law counsel.

6. Long-Term-Care Insurance

Private LTC insurance pre-funds nursing facility or HCBS care, reducing or eliminating reliance on MassHealth and thus reducing or eliminating estate recovery exposure entirely. The Massachusetts Long-Term Care Insurance Partnership Program also provides asset-protection benefits for partnership-qualified policies.

Caveats: LTC insurance is expensive and underwriting-restricted. Most appropriate for middle-class families with planning runway who can afford premiums.

7. Spend-Down with a Care Strategy

For families who anticipate institutionalization, structured spend-down on the member's own care, household repairs, a replacement vehicle, prepaid funeral and burial arrangements, or modest gifts to family within transfer-penalty limits can reduce countable assets and post-death exposure at the same time.

Combined Planning

The strongest planning combines multiple approaches: tenancy by the entirety on the marital home, beneficiary-designated retirement accounts, joint accounts with adult children for liquid assets, and an irrevocable trust executed well ahead of any MassHealth application. This combination can leave a probate estate well below the $25,000 auto-waiver threshold, eliminating estate recovery exposure.1

10 Common Pitfalls

1. Missing the 60-day Notice of Claim deadline. Failure to respond on time is treated as an admission of the claim's validity. Calendar this date the moment the Notice of Claim arrives, and engage counsel within days of receipt.1

2. Assuming the pre-2024 broader regime still applies. For deaths on or after August 1, 2024, the post-reform narrower regime applies. Confirm the date of death and apply the correct regime.1

3. Failing to verify the billing printout. Practitioners report these printouts often contain errors, duplicate charges, or services that should be excluded. Always request and review the underlying billing printout.

4. Failing to apply for all relevant hardship waivers. The three categories under 130 CMR 515.011(F) cover different scenarios. Apply for any plausible waiver.1

5. Treating MassHealth recovery as negotiable for dollar reductions. It generally is not. The negotiable space is alternative payment structures and regulatory waivers, not direct dollar discounts.

6. Paying a MassHealth lien on real property held until death. Under Mason, that lien cannot be enforced after death. Do not pay a lien that is unenforceable; engage counsel to formally release it at the registry of deeds.4

7. Failing to track the three-year statute of repose (Kendall). If MassHealth has not filed a Notice of Claim within three years of death, the claim is barred. Calendar the three-year mark.3

8. Not sending the probate petition and death certificate to the unit. The personal representative is statutorily required to provide this notification under M.G.L. c. 118E § 32. Send it by certified mail to P.O. Box 15205, Worcester, MA 01615-0205.5

9. Ignoring spousal protection. A surviving spouse triggers automatic deferral. Use that protected period to re-title assets out of the deceased's name, reducing the original member's estate as far as possible.1

10. Setting up asset-protection trusts too late. The Medicaid lookback applies, so trusts must be funded well before a MassHealth application. Drafting a trust after admission cannot defeat the lookback.

Where to Get Help

If you have questions about Massachusetts Medicaid estate recovery, hardship waivers, MassHealth liens, or planning options, start with these resources.

Learn More

Find personalized help navigating Massachusetts 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.