Ohio Medicaid Estate Recovery 2026: Expanded Rules & MAPTs

Ohio Medicaid estate recovery is the state's effort, after a recipient dies, to recover from their estate what Medicaid spent on their care. After an Ohio Medicaid recipient who was 55 or older (or who was permanently institutionalized at any age) dies, federal law requires the State of Ohio to try to recover those costs.1,2 That is true in every state, and it reaches care as ordinary as a doctor visit or prescription, not just a nursing home. What makes Ohio different is the scope of what it reaches. Where many states limit recovery to property that passes through probate, Ohio elects expanded recovery authority under Ohio Revised Code 5162.21 and reaches further: into property held jointly with a spouse or child, into bank accounts with payable-on-death beneficiaries, into Transfer on Death Designation Affidavits, into living trusts, and into life estates. Ohio's statute reaches "assets conveyed to a survivor, heir, or assign of the individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement."2 If you titled your home with your daughter under "Joint with Rights of Survivorship" thinking that would shield it from Medicaid, in Ohio it usually won't. If you signed a TOD Designation Affidavit at the county recorder's office to pass your home to your son outside of probate, the state still reaches it.

This is expanded estate recovery. Ohio takes both of the expansions federal law leaves to state option: the wider estate definition, and recovery for all Medicaid benefits correctly paid rather than long-term care alone. The dollars come from grieving families, often in five- or six-figure amounts, often from people who had no idea Medicaid recovery existed at all when their parent or spouse signed up.

For Ohio families navigating Medicaid long-term services and supports, the practical takeaway is this: assume expanded recovery applies, plan accordingly, and do not rely on TOD deeds, JTWROS titling, or POD beneficiaries to keep the home in the family. This guide walks through what's recoverable, what's not, what protections exist, what planning tools actually work in Ohio, what pending reform proposals would change, and where to get free legal help.

Key Takeaways

• Ohio recovers Medicaid spending from the estates of recipients age 55+ who received any Medicaid services, plus any permanently institutionalized individual of any age. Authority: ORC 5162.21 and OAC 5160:1-2-07, implementing the federal mandate at 42 U.S.C. 1396p(b).2,1
• Ohio elects the expanded estate definition under ORC 5162.21. Recoverable assets include probate property plus property passing through joint tenancy, survivorship, life estates, living trusts, Transfer on Death affidavits, payable-on-death accounts, and any "other arrangement."2
• Ohio's TOD Designation Affidavit does NOT shield the home from recovery. Under ORC 5302.221 the county recorder must give the beneficiary a Medicaid estate recovery form (ODM 07408) before recording the transfer, and the beneficiary must send the completed form to the Estate Recovery Unit if it indicates the deceased owner or a predeceased spouse received Medicaid, or that the beneficiary does not know.
• Recovery is deferred while there is a surviving spouse, a child under 21, or a blind/disabled child of any age, and that deferral covers both of Ohio's recovery tracks. The resident-sibling (1+ year) and "caregiver child" (2+ years, providing care that delayed institutionalization) home protections are narrower than families usually assume: ORC 5162.21(C)(2) attaches them to the home of a permanently institutionalized recipient that is subject to an ORC 5162.211 lien, not to the much larger age-55-and-older track. Confirm with counsel which track you are on before relying on them.2,1
• Ohio Medicaid presents its claim no later than 90 days after ODM receives the estate-recovery notice form, or one year after death, whichever is later (ORC 2117.061).2
• Hardship waivers are available case-by-case for sole income-producing assets, survivors who would become public-assistance eligible, and dependent survivors.
• The most reliable avoidance tool is a properly drafted irrevocable Medicaid Asset Protection Trust (MAPT) funded outside the 60-month federal look-back before application.1,3
• House Bill 318 (136th General Assembly) was introduced June 3, 2025 and referred to the House Medicaid committee on June 4, 2025, with no recorded action since. It has not been enacted and changes nothing above; read the bill text and verify its status on ohiohouse.gov.2

For the broader Ohio Medicaid context, see the Ohio Medicaid pillar guide. For dual-eligible architecture, see the Next Generation MyCare Ohio guide.

The Federal Floor: What Recovery Was Designed to Be

Medicaid Estate Recovery is a federal mandate, not a state innovation. It was added by OBRA-93 (the Omnibus Budget Reconciliation Act of 1993), which amended the Social Security Act to require states, as a condition of receiving federal Medicaid matching funds, to seek recovery from the estates of certain deceased Medicaid recipients.1 The federal mandate is codified in the Medicaid statute at 42 U.S.C. 1396p(b).1

The federal mandate has two operative components:

The statute starts from a prohibition and carves the mandate out of it: no adjustment or recovery of any medical assistance correctly paid may be made, except in the cases it then names. Assistance that was not correctly paid is not recoverable under this section at all.1

(1) Mandatory recovery for two populations:

• Permanently institutionalized individuals of any age. The statute tells the state to recover "from the individual's estate or upon sale of the property subject to a lien," so recovery from this population is mandatory whether or not a pre-death lien was ever filed. Getting into that population is not automatic either: the state must have determined, after notice and an opportunity for a hearing under its own procedures, that the person cannot reasonably be expected to be discharged and return home.1
• Individuals who were age 55 or older when they received Medicaid, but only for nursing-facility services, home- and community-based services (HCBS), and related hospital and prescription-drug services. This is the federal floor, the minimum recovery the state must pursue.1

(2) Permissive expansion on two axes, which states may take or leave: recovery for all other Medicaid services the older population received (outpatient visits, equipment, ambulance), and an "estate" reaching beyond probate to any property the individual held legal title or interest in at death. Ohio takes both, as the next section works through.

The federal floor (services defined as NF/HCBS/related; estate defined as probate-only) is what many states pursue.1 California is the sharpest example: SB 833 confined Medi-Cal recovery to the probate estate and to the services federal law requires, for members who died on or after January 1, 2017.4 Massachusetts likewise recovers only from the probate estate, and for deaths on or after August 1, 2024 only at the federal service floor.5 Ohio, by contrast, elects expanded recovery on both axes. Don't assume a neighboring state is narrow, though: Indiana also runs an expanded-estate program that reaches non-probate transfers, including survivorship property and revocable-trust assets.1

The federal mandate also imposes categorical protections:1

• No recovery while there is a surviving spouse.
• No recovery while there is a surviving child under 21, or a blind or permanently and totally disabled child of any age (regardless of where the child lives).
• Where a lien has been placed on the home of a permanently institutionalized recipient, no recovery against that home while a qualifying resident sibling lives there, or while a son or daughter who lived in the home for at least two years before institutionalization and provided care that delayed it continues to live there. Read the bound carefully: on the statute's face these two home protections travel with the lien-and-permanent-institutionalization track, not with the far larger age-55-and-older track, and Ohio codes them the same way at ORC 5162.21(C)(2). HHS's own report describes the same two prohibitions more broadly, as general estate-recovery prohibitions running to "the former home of the recipient." A caregiving son or daughter should therefore not read the narrow version as settling the question, and should put it to counsel.2,1

One more thing the residency conditions do not do: they are joined to the surviving-spouse and surviving-child bars by "and," not "or." A family whose protected child has moved out has not thereby lost the separate spousal and minor-or-disabled-child bars, and the mandatory hardship waiver still sits on top of all of them.1

Federal law also requires states to establish hardship waiver procedures consistent with HHS standards.

There is one federal exclusion for Medicare cost-sharing benefits, and its shape matters. The carve-out is a parenthetical inside clause (ii) of 42 U.S.C. 1396p(b)(1)(B), the clause that lets a state reach beyond long-term care to any item or service under its state plan. That optional category is written as "any items or services under the State plan (but not including medical assistance for medicare cost-sharing or for benefits described in section 1396a(a)(10)(E))," section 1396a(a)(10)(E) being the Medicare Savings Program populations. So if your mother was a QMB-only dual eligible and Medicaid paid only her Medicare premiums, deductibles, coinsurance, and copays, those dollars are outside the optional recovery Ohio has elected. What the carve-out does not do is shield anything under clause (i). No such parenthetical appears there, so nursing-facility services, home- and community-based services, and the related hospital and prescription-drug services stay subject to mandatory recovery. Read this as a limit on the optional expansion, not as a general exclusion of Medicare cost-sharing, and not as anything that puts a home beyond reach.1

Ohio's Election: Maximum Expansion Under Federal Authority

Ohio's choice to take the expanded-recovery options means it reaches a far wider pool of assets than probate-only states do. The structural contrast, not a head-to-head dollar count, is the point: a probate-only state (Massachusetts, say, which recovers only from the probate estate and waives recovery altogether where the probate petition certifies estate assets of $25,000 or less, for deaths on or after May 14, 2021) recovers only against assets that pass through the decedent's probate estate, while an expanded state like Ohio also reaches joint-tenancy, life-estate, living-trust, TOD, and POD assets.5

Ohio's estate-recovery statute (ORC 5162.21) and rule (OAC 5160:1-2-07) specify the two recovery-eligible populations:2

1. Any permanently institutionalized individual (any age) who received Medicaid LTSS.
2. Any individual age 55 or older who received any Medicaid services correctly paid. Ohio pursues "all medicaid benefits correctly paid including managed care capitation payments" (OAC 5160:1-2-07(C)), so a managed-care premium the state paid on your mother's behalf counts even in a month she saw no one. Two limits ride with that breadth on this track: recovery reaches benefits only after the individual attained age 55, and it excludes benefits paid on or after January 1, 2010 under the Medicare premium assistance programs, which is Ohio's wording for the Medicare Savings Programs the federal carve-out protects.2,1

The first population maps to the federal mandatory floor. The second sweeps in everyone, not just nursing-home residents, not just HCBS-waiver participants, not just hospital and drug recipients, but everyone in the older eligible cohort who received any Medicaid service. An older aged-blind-disabled (ABD) Medicaid recipient who used Medicaid for a couple of outpatient appointments and a hospital stay before going back on Medicare-only: the estate is on the hook for those services. An older Group VIII ACA Medicaid expansion enrollee who used Medicaid for a year between job losses: the estate is on the hook for those services. (Group VIII recovery is rare in practice because most expansion enrollees are working-age and healthy, but the legal authority to pursue is there in Ohio.)

ORC 5162.21 then defines the recoverable estate, tracking the federal expanded-estate authorization in 42 U.S.C. 1396p(b)(4) closely: it reaches "any other real and personal property and other assets in which an individual had any legal title or interest at the time of death (to the extent of the interest), including assets conveyed to a survivor, heir, or assign of the individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement." That catch-all "other arrangement" language captures POD accounts, TOD beneficiary designations on securities, and similar non-probate transfers.2

For practical purposes: if a deceased Ohio Medicaid recipient had any legal interest in any asset at the moment of death, that asset is potentially recoverable to the extent of the decedent's interest.2 That includes:

• A bank account titled jointly with a child, even if the child deposited all the funds (decedent had legal access).
• A home titled in joint-with-rights-of-survivorship form, even if the child has lived there for decades (decedent retained a present ownership interest).
• A home transferred via TOD Designation Affidavit, even if recorded a decade before death (the transfer occurs at death, so decedent still owned it outright at the moment of death).
• A revocable living trust funded with the decedent's home (decedent retained the power to revoke and thus a legal interest).
• A life estate retained by the decedent (the life estate itself is recoverable by valuation at death; remainder may be safe).

The exceptions are narrow: assets passed through validly executed irrevocable trusts where the decedent retained no countable interest (and the lookback has run), assets passed through life-insurance or retirement-account beneficiary designations to non-spouses (where the asset never belonged to the decedent for property-law purposes), and assets in tribal trust status under the Native American Graves Protection and Repatriation Act (NAGPRA) and similar federal protections.

This breadth is why bipartisan reform legislation has been introduced. It's also why every Ohio family with a Medicaid-eligible elder needs to think hard about asset titling well before Medicaid is on the table.

The Expanded Estate Defined: What Ohio Actually Reaches

What is in scope, and what is not, under Ohio's expanded recovery law as it stands today:

The takeaway: outside of MAPTs, completed gifts, retirement-account beneficiary designations, and life insurance, almost everything is in scope. The reason TOD deeds are so commonly recommended in eldercare-planning blog posts written for general audiences is that in the many probate-only states they work. In Ohio they don't.

Why Reform Is Pending

Pro Seniors Inc. in Cincinnati, the Legal Aid Society of Cleveland, and the Ohio Poverty Law Center have spent years gathering the hardship cases that became the testimony backbone for reform: modest-income recipients whose estates got four-, five-, and six-figure claims nobody warned the family about at enrollment, and surviving spouses facing pre-death liens on jointly owned homes.

The argument those groups make is that the program falls hardest on families with just enough to be worth recovering from, a paid-off house and a small bank account, and not enough to have paid an elder-law attorney for a trust five years earlier.

Pending Ohio Reform Legislation

House Bill 318 of the 136th General Assembly, whose primary sponsors are Representatives Jason Stephens and Sean P. Brennan, was introduced June 3, 2025 and referred to the House Medicaid committee on June 4, 2025. The Ohio House status history records no action after that referral. It has not been enacted, and nothing in this guide changes because it exists.2

What the bill would do if it moved is a question to answer from the bill text itself, not from us or from advocacy summaries. Read the current text, sponsors, committee assignment, hearing record, and any companion Senate bill on the official Ohio Legislature page before you plan around any of it.

Coalition supporting reform has included Pro Seniors Inc., the Ohio Poverty Law Center, and the broader Ohio Legal Aid network.

Who Triggers Recovery: Age Threshold and Permanent Institutionalization

Ohio recovers from two populations under the state estate-recovery statute:

Population 1: Permanently institutionalized individuals (any age). Under ORC 5162.21(A)(3), a "permanently institutionalized individual" is an inpatient in an institution (nursing facility, ICF/IID, or medical institution) who must spend all income except a personal-needs amount on their care and who, as determined by the Ohio Department of Medicaid, cannot reasonably be expected to be discharged and return home. It is an ODM determination, not a physician's certification, and ORC 5162.21(F) makes it a rebuttable presumption when the person says they do not intend to return home or has been an inpatient for at least six months. For this population, recovery extends to all Medicaid services correctly paid, regardless of the recipient's age.2

Population 2: Individuals age 55 or older when they received Medicaid. For this much larger population, recovery extends to all Medicaid services correctly paid, regardless of whether those services were institutional or community-based, and regardless of whether they were LTSS or acute. This is the broad-spectrum capture that catches Group VIII expansion enrollees, ABD Medicaid recipients, and full-benefit dual-eligibles using Medicaid for state-plan services.2 The one thing it does not catch is Medicare cost-sharing: premiums, deductibles, coinsurance, and copays that Medicaid paid through a Medicare Savings Program are carved out of recovery by 42 U.S.C. 1396p(b)(1)(B)(ii), so a QMB-only dual's estate is not on the hook for those dollars no matter how broadly the state elects.1

For people under 55 who are NOT permanently institutionalized, no estate recovery applies. This is why a younger Medicaid recipient who used Medicaid for a hospital stay and outpatient care has no estate recovery exposure at all.1

Age 55 is also the most common moment when Ohio elder-law attorneys recommend MAPT planning be initiated, well before Medicaid is plausibly in scope, which means starting the planning conversation before the family anticipates a likely Medicaid LTSS need.

The Probate Notice Pipeline

Estate recovery in Ohio is procedurally driven by Ohio's probate notice statute. The mechanics:

Trigger: The recipient dies. The estate enters probate (or a short-form release-from-administration proceeding for estates under Ohio's small-estate threshold).

Personal representative duty: The executor, administrator, commissioner, or person filing for release from administration must submit the completed Medicaid estate recovery notice form to the program administrator, which is the Attorney General's office, not later than thirty days after whichever of these happens:2

• Grant of letters testamentary or letters of administration; OR
• Filing the application for release from administration.

The ODM 07400 form requires:

• Decedent's name, SSN, date of death.
• Personal representative's name and contact.
• Probate court case number.
• Estate value estimate.
• Whether the decedent received Medicaid (the personal representative must check this; the form is required whether or not the personal representative knows the decedent received Medicaid, this is what trips up families who didn't know about the parent's Medicaid coverage).

The probate court forms have a designated section confirming compliance with the probate notice requirement. Ohio probate courts generally won't approve final accounts or close the estate without that confirmation.

Personal representative liability: A personal representative who distributes estate proceeds without giving notice to ODM and without paying a valid Medicaid claim from estate assets is personally liable to the state for the amount that should have been paid. This is a real exposure for executors: distributing the estate before ODM has had a chance to file its claim can result in personal financial liability for the executor.

TOD Designation Affidavit pipeline: Probate isn't the only notice pipeline. ORC 5302.221 requires the Medicaid estate recovery administrator to prescribe a form (ODM 07408) and make it available to county recorders, and requires the recorder to give a copy to the TOD beneficiary before recording the transfer. The beneficiary must then send the completed form to the Estate Recovery Unit if it says the deceased owner, or a spouse who died before the owner, had been a Medicaid recipient, or that the beneficiary does not know.

Be precise about what that does and does not do. The notice flags the property to the state; it is not a title freeze. ORC 5302.222(C) directs the recorder to record any affidavit of confirmation filed under that section, and neither statute conditions recording or the passing of title on ODM clearing a claim first. What the notice creates is a live state claim against a beneficiary who now holds property that was in the decedent's estate under ORC 5162.21, and a beneficiary who ignores the form is not thereby out of reach.

This dual pipeline, probate notice plus TOD recorder notice, is what makes Ohio's expanded recovery operationally enforceable. In states with expanded statutory authority but no parallel TOD-recorder notice, the practical recovery against TOD assets is often weak. Ohio's TOD-recorder notice rule closes that loophole.

The Ohio Medicaid Estate Recovery Time Bar

A persistent misconception in Ohio elder-law practice is that ODM has "12 months to file an estate recovery claim." This is approximately right but mechanically wrong. The actual rule, under ORC 2117.061:

ODM must present the estate recovery claim no later than 90 days after the date on which the Medicaid estate recovery notice form is received by ODM, or one year after the decedent's death, whichever is later.2

The operative bar is a 90-day notice-window clock with a one-year-from-death floor. If the personal representative files the ODM 07400 notice promptly, ODM has 90 days from that date to file its claim, often well within a year of death. If the personal representative delays, ODM still gets at least the one-year-from-death floor.

Practical implications:

• Personal representatives cannot accelerate estate distribution by "running out the clock" via delayed ODM 07400 notice. Their personal liability under Ohio's probate-notice rule means delay isn't a viable strategy.
• Beneficiaries waiting for an estate distribution should expect a meaningful waiting period from notice filing before ODM clears or asserts a claim.
• For estates with no Medicaid recovery exposure, ODM responds with a "no claim" release within its response window, allowing the estate to close.
• For estates where ODM has a claim, the personal representative has to negotiate or pay the claim before final accounts are approved.

TOD Designation Affidavits in Ohio: Why They Don't Protect You

This is the single most important point in this guide because it's the single most common Ohio planning mistake.

Background: Ohio replaced the old Transfer on Death deed with the Transfer on Death Designation Affidavit, codified in the TOD-designation provisions on codes.ohio.gov. The owner records an affidavit naming a beneficiary; at the owner's death the beneficiary records an Affidavit of Confirmation with a death certificate, and title transfers without probate.

The pitch: Real-estate brokers, generalist attorneys, and consumer-facing eldercare blogs frequently recommend TOD Designation Affidavits as a cheap and easy way to keep the home out of probate and out of Medicaid recovery. In probate-only states this advice is correct. In Ohio, it is wrong.

Why it doesn't work in Ohio:

1. Ohio's expanded estate-recovery statute (ORC 5162.21) reaches property in which the decedent had any legal title or interest at the time of death, including assets conveyed through life estate, living trust, or other arrangement. A TOD Designation Affidavit is "another arrangement"; title remains in the decedent until the moment of death.2

2. Ohio specifically anticipated this evasion strategy. ORC 5302.221(C) requires the county recorder to give the beneficiary the ODM 07408 form before recording the transfer, and requires the beneficiary to send it to the Estate Recovery Unit whenever it reports that the deceased owner or a predeceased spouse received Medicaid, or that the beneficiary does not know. That is a flag on the property, not a lock on it: recording still proceeds under ORC 5302.222(C), and the state's leverage is the recovery claim itself, not a withheld deed.

3. In practice, this means TOD-designated property is functionally subject to Medicaid recovery in Ohio almost as readily as probate property. The TOD Designation Affidavit may save the family the probate filing fee and probate timeline, but it does not save the underlying value of the home from Medicaid recovery.

What actually happens: a TOD-designated home is the most common recovery target in Ohio. The recipient signs the affidavit naming an adult child, dies, and the child goes to the recorder expecting clean title and gets an ODM 07408 notice instead. The worked example later in this guide follows that family through the four options they are left with.

The harder-but-actually-protective alternative: A properly drafted irrevocable Medicaid Asset Protection Trust (MAPT) funded with the home outside the federal lookback removes the home from the recoverable estate entirely. The transfer is a divestment that triggers the federal lookback for institutional Medicaid eligibility, but once the lookback runs, the home is out. We cover MAPTs in detail below.

Joint with Rights of Survivorship: Caught by Expanded Recovery

The same logic that defeats TOD Designation Affidavits also defeats Joint with Rights of Survivorship (JTWROS) titling for both real property and bank accounts.

Real property: When a parent and adult child hold a home in JTWROS, the surviving owner takes title automatically at the first owner's death without probate. The concept is property-law-equivalent to TOD: title passes outside of probate. Ohio's expanded recovery definition (ORC 5162.21) reaches it because the decedent had a proportional ownership interest in the property at the moment of death. Recovery is to that proportional interest.2

In practice, this often produces recovery against the recipient's share of equity in the home. If a home was held JTWROS between a parent (the Medicaid recipient) and an adult child, ODM recovers up to the parent's share of the equity, leaving the child with their own pre-existing share plus whatever remains after recovery.

Bank accounts: JTWROS bank accounts work the same way. Even where the surviving joint owner contributed all the funds and the recipient never deposited a dime, the recipient's name on the account creates a legal interest at the time of death that ODM can reach. Practically, ODM and Ohio AG estate-recovery practitioners look at deposits-and-withdrawals patterns to determine the decedent's actual contribution; accounts where the decedent clearly contributed nothing are sometimes released, but the burden is on the surviving joint owner to demonstrate this.

The variant strategy that doesn't help: Some families title the home in the child's name alone during the parent's lifetime, with an oral or written agreement that the parent retains the right to live there. This strategy gets the parent off the title, but it usually triggers Medicaid lookback consequences (a transfer for less than fair market value within the federal lookback creates a transfer-penalty period delaying eligibility). And if the parent retained any meaningful "interest", like the right to occupy or the right to receive proceeds from a sale, Medicaid eligibility workers may treat the asset as still owned by the parent.

The clean strategies in Ohio are: (1) outright gift well outside the federal lookback period, (2) MAPT, (3) caregiver-child deed (where applicable), or (4) accept that the asset will be subject to recovery.

POD Accounts, Life Estates, and Living Trusts: Also Caught

Payable-on-Death (POD) bank accounts: Same analysis as JTWROS bank accounts. The decedent had legal title (sole title, with a beneficiary designation) at death; the beneficiary takes after death; Ohio recovers under ORC 5162.21 because the asset was the decedent's legal interest at death. Brokerage accounts with TOD beneficiary designations work the same way.2

Life estates: Traditional life estate deeds (where the parent retains a life estate and the child receives the remainder) are slightly more complex. The life estate itself ends at death, but at the moment of death the decedent had a legal interest (the life estate). Ohio's recovery practice values the life estate at death using actuarial tables, typically with negligible value if the decedent died of natural causes after a normal life expectancy, but potentially with some value if the decedent died younger. The remainder interest given to the child years earlier is generally NOT recoverable provided (1) the transfer of the remainder happened outside the federal lookback before Medicaid application, and (2) the remainder was a complete divestment. These deeds work better than TOD Affidavits for that reason, but they trigger the lookback when the remainder is created, so the planning has to happen well in advance.

Lady Bird (enhanced life estate) deeds: These exist in Florida, Michigan, Texas, Vermont, Nevada, and West Virginia. They are an enhanced life estate deed where the life tenant retains the right to revoke and to encumber the property, meaning no transfer-penalty consequence at the time of creation, but seamless transfer to the remainderman at death. Ohio does not recognize Lady Bird deeds. The closest functional substitute under Ohio law is the TOD Designation Affidavit, which (as established) doesn't shield from recovery.

Revocable living trusts: A revocable living trust is, for Medicaid eligibility and recovery purposes, an entirely transparent vehicle. The grantor retains full control: power to revoke, to amend, to remove assets, to consume income and principal. The trust assets are treated as the grantor's own assets for both eligibility and recovery purposes. At death, the trust assets are recoverable under Ohio's expanded estate-recovery "living trust" language. Revocable trusts are useful for probate avoidance, incapacity planning, and privacy, but they provide zero protection against Medicaid recovery.

Irrevocable trusts: This is where the analysis gets more nuanced and the planning starts to actually work. We address it next.

What Actually Works: The Medicaid Asset Protection Trust (MAPT) Pathway

A Medicaid Asset Protection Trust (MAPT) is the gold-standard Ohio planning tool for protecting assets from estate recovery. It's expensive (typical Ohio drafting costs are four- to five-figure ranges; consult an elder-law attorney for current fees), it's restrictive (the grantor permanently gives up control over the trust assets), and it requires a runway before Medicaid application (the federal LTC lookback). But it works.

Structure: An irrevocable trust drafted to satisfy three legal requirements:

1. No retained ability to revoke or amend. Once funded, the grantor cannot pull assets back out, change beneficiaries, or modify trust terms in a way that returns benefit to the grantor.

2. No retained beneficial interest. The grantor cannot be a discretionary beneficiary of trust principal. The grantor can typically retain a right to income generated by the trust (without that income being available to pay LTSS costs), but cannot have any access to principal.

3. No general power of appointment. The grantor cannot retain power to direct trust assets to themselves or to their estate or creditors.

Common provisions:

• Grantor's adult children (or independent trustee) serve as trustee.
• Grantor receives income only from trust; no principal access.
• At grantor's death, trust assets pass to named beneficiaries (typically children) outside of probate and outside of Ohio's expanded estate.
• Grantor may retain a "limited power of appointment", a right to direct trust assets among a class of permitted beneficiaries (e.g., children) but not to themselves. This preserves estate-tax flexibility.
• Trust may include a "QPRT-style" provision allowing the grantor to live in the home rent-free during life if the home is the funded asset.

Lookback consequence: Funding the MAPT is a divestment, triggering the 60-month (five-year) federal look-back for institutional Medicaid eligibility, which Ohio implements through OAC 5160:1-6-06. If the grantor applies for Medicaid LTSS within that five-year window after funding, a transfer-penalty period delays eligibility. The penalty is calculated by dividing the divested amount by Ohio's published transfer-penalty divisor (the average monthly cost of nursing-facility care in Ohio); verify the current divisor on the ODM MEPL.1,3

Why it works for recovery: Because the grantor retained no legal title or interest in the trust assets, those assets are not in the grantor's estate at death, not in the probate estate, and not in Ohio's expanded estate. The "any legal title or interest at the time of death" language in Ohio's expanded-recovery statute doesn't reach assets the grantor doesn't own.

Practical considerations:

• The MAPT must be drafted by an experienced Ohio elder-law attorney. Generic online trust forms typically retain too much grantor control to satisfy MAPT requirements. The Ohio chapter of the National Academy of Elder Law Attorneys (NAELA) maintains a referral list.
• The home is the most commonly funded asset. Bank and brokerage accounts can also be funded. Retirement accounts generally should NOT be funded into MAPTs because doing so accelerates income taxation; non-spouse retirement-account beneficiary designations are usually a better non-recovery path for those assets.
• The grantor must not retain access to principal. Many people balk at this; the lookback window feels like a long time to be without access to one's own assets. The trade-off is significant: continued access vs. recovery exposure.
• Existing mortgages should be addressed before funding (the lender may have due-on-sale concerns).
• Funding the home into a MAPT may affect Ohio property-tax homestead exemption; the trust should contain provisions allowing the grantor to occupy as principal residence to preserve the exemption.

Timing rule of thumb: If the elder is healthy and Medicaid LTSS is plausibly well outside the federal lookback, a MAPT is the appropriate planning vehicle. If LTSS is imminent (within months), a MAPT is too late and the family should focus on spend-down planning, Medicaid-compliant annuities, and caregiver-child deeds. The middle ground (LTSS plausible inside the lookback) is where Ohio elder-law practice gets complicated; partial planning, spousal protection, and crisis-Medicaid strategies dominate.

Caregiver Child Deeds

The federal caregiver-child exception and its Ohio implementation are one of the most powerful protections in Ohio recovery law, and one of the least understood by families.

Rule: Under ORC 5162.21(C)(2)(b), recovery against a permanently institutionalized recipient's liened home is barred while a son or daughter who:

• Resided in the home for at least two years immediately before the recipient's admission to the institution, and continuously since, AND
• Provided care to the recipient that delayed the recipient's institutionalization,
• Continues to lawfully reside in the home.2

Note the bound before you rely on it. That protection is written into the permanently-institutionalized recovery track and applies to the home; it is not a general shield for every recipient's house. The transfer route below is the more durable tool, and it is the one this section is really about.

The transfer route is a separate federal rule with its own test, not the criteria of the recovery bar above. Federal Medicaid law (42 U.S.C. 1396p(c)(2)(A)(iv)) excludes from the lookback rules a transfer of the home to a son or daughter who resided in the home for at least two years immediately before the parent became an institutionalized individual and who, as determined by the state, provided care that kept the parent out of an institution. This is a powerful tool: pre-Medicaid-application transfer of the home to a caregiver-adult-child, with no transfer penalty, removes the home from the eventual estate entirely.1

Documentation required by ODM:

• Move-in date for the caregiver child (lease, mail records, voter registration, utility bills).
• Level-of-care assessment showing the recipient required care that would have triggered nursing facility admission absent the caregiver child's care.
• Physician's statement attesting that the recipient required at least the level of care provided by the caregiver child for the required period before institutionalization.
• Care logs, calendar, or other records documenting the care provided.

Required residency period: Must be the period immediately preceding institutionalization. A caregiver child who provided care during an earlier window but moved out before the institutionalization date does not meet the rule.

"Delayed institutionalization": The caregiver child must have provided enough care that without it, the recipient would have entered a nursing facility earlier. This is fact-specific. A child who lived in the home but provided minimal hands-on care for an able-bodied parent doesn't meet the rule. A child who provided 24/7 personal care, transferred medications, and supervised dementia behaviors meets it.

Common practical pitfalls:

• Adult child claims caregiver status retroactively after parent dies, with no contemporaneous documentation. ODM denies the exception. The family loses.
• Adult child moved into home only after parent's hospitalization, not the required period before. Doesn't meet the rule.
• Adult child lived in the home but worked full-time outside the home and parent was largely independent. ODM finds care was insufficient to delay institutionalization.

The rule rewards families who plan: an adult child planning to be a caregiver should move into the parent's home well before any health crisis, document care contemporaneously, and consult an Ohio elder-law attorney about transferring the home into the child's name once the required residency period is established.

Medicaid-Compliant Single Premium Immediate Annuities

For applicants who need to spend down assets to qualify for Medicaid LTSS, particularly applicants whose spouse will continue to live in the community, Medicaid-compliant Single Premium Immediate Annuities (SPIAs) are a frequently used tool. The mechanics:

Purchase: The applicant purchases an SPIA from an insurance company. The annuity is funded with a lump sum and pays a fixed monthly stream to the annuitant for a defined term.

Effect on Medicaid eligibility: The lump sum is converted from a countable resource (which would disqualify the applicant) into a stream of income (which is treated under Ohio's income rules). The applicant becomes asset-eligible. The income stream may push the applicant over the income limit if the SPIA term is short, but Ohio's Special Income Limit plus the Miller Trust pathway typically accommodates this.

Compliance requirements (per Ohio's annuity OAC rules): To avoid being treated as a countable asset rather than an income stream, the SPIA must be:

• Irrevocable (no surrender or commutation rights).
• Non-assignable (cannot be sold or transferred).
• Actuarially sound (term cannot exceed annuitant's life expectancy per HHS tables).
• Equal monthly payments (no balloon payments, no deferred payments).
• State of Ohio named as primary remainder beneficiary up to the amount of Medicaid services paid for the annuitant. (Spousal-life SPIAs may name the spouse as primary and Ohio as secondary.)

Effect on estate recovery: If the annuitant dies before the annuity term ends, remaining payments go to the named remainder beneficiary, which, by Medicaid compliance rules, is the State of Ohio up to the amount of Medicaid services paid. This means the SPIA functionally pre-pays Ohio's recovery claim from the remaining annuity stream.

Why use SPIAs instead of MAPTs?: SPIAs are crisis-Medicaid tools, not long-range planning tools. They're used when LTSS is imminent and the lookback period is too long to wait. They protect the community spouse's standard of living during the LTSS spouse's nursing-home stay; they do not generally preserve assets for the next generation (the State recovers from the remaining stream).

Alternative: Spousal-life SPIAs name the community spouse as the annuitant and the institutionalized spouse's Medicaid eligibility benefits from removing the lump sum from the institutionalized spouse's countable resources. After the institutionalized spouse dies, the community spouse continues receiving the stream; Ohio's recovery against the institutionalized spouse's estate may include the institutionalized spouse's interest in the SPIA, but in practice this is often modest.

Detailed SPIA planning is beyond the scope of this guide; consult an Ohio elder-law attorney before purchasing.

The Surviving Spouse Deferral (Not Permanent Waiver)

Families routinely assume that if the spouse outlives the recipient, recovery is gone. It is not. Both the federal rule and Ohio's defer recovery while the spouse is alive; neither waives it.

Ohio surviving-spouse rule: No recovery during the surviving spouse's lifetime. This mirrors the federal mandate that recovery may be made only after the death of a surviving spouse.1,2

After the spouse's death: ODM may pursue recovery against assets that:

• Passed from the recipient to the surviving spouse, AND
• Then from the spouse to a third party (typically the children) at the spouse's death.

Practically, this means:

• A home that was held JTWROS by spouses and went to the surviving spouse: when the surviving spouse later dies, that home can still be subject to recovery for the original Medicaid recipient's services.
• A bank account that passed by survivorship to the surviving spouse and was later spent down: ODM may face an empty bag (you can't recover from spent assets).
• Assets that the surviving spouse retitled into a new spouse's name or into an irrevocable trust during the spouse's lifetime: ODM has a more complicated tracing case but can still pursue.

Practical implication: the surviving spouse has a planning window that opens the day the recipient dies. Lifetime gifts outside the federal lookback, MAPT funding by the surviving spouse, and spend-down on exempt assets are all tools during it.

Critical: spousal refusal, the New York strategy in which the community spouse formally refuses to support the institutionalized spouse, is not recognized in Ohio. Ohio uses the standard CSRA, MMMNA, and CSMIA framework, so do not import that planning across state lines.

Child / Sibling / Caregiver Categorical Protections

In addition to the surviving-spouse deferral, Ohio recognizes (per federal mandate) several categorical protections that defer or bar recovery:

Surviving child under 21: Recovery is deferred while the recipient has a surviving child who is under 21. Once the child turns 21, recovery may proceed against the child's inherited share.1

Surviving blind or permanently disabled child of any age: Recovery is deferred during the lifetime of any surviving child who meets the SSI definition of blind or permanently and totally disabled. The disability determination uses SSI standards. There is no end-date for this deferral; if the child remains alive and disabled, recovery never proceeds against the deferred share.1

The two home protections, and the bound families miss: Ohio's resident-sibling and resident-caregiver-child protections live in ORC 5162.21(C)(2), and that division is written narrowly. It bars recovery under division (B)(1) against a permanently institutionalized individual's home that is subject to an ORC 5162.211 lien while either of these lawfully resides there:2

• A sibling who resided in the home for at least one year immediately before the recipient's admission to the institution, and continuously since. Note that Ohio's recovery bar, unlike its lien bar at ORC 5162.211(C)(3), does not require the sibling to hold an equity interest.
• A son or daughter who provided care that delayed the recipient's institutionalization and resided in the home for at least two years immediately before admission, and continuously since.

Two consequences follow, and they are the reason to bring these to an attorney rather than assume them. First, both protections are attached to the permanently-institutionalized-and-liened track. They are not written into division (B)(2), the age-55-and-older track that sweeps in most Ohio recipients. Second, they protect the home, not the estate at large. A caregiver son living in the house does not shield his mother's bank account.

The interplay: Several protections can run at once. A recipient who leaves a surviving spouse and an adult disabled daughter gets the spousal deferral and the disabled-child deferral against the whole estate, for as long as each is alive. If the recipient was permanently institutionalized and ODM had liened the home, a resident caregiver son adds a bar against that home.

The spousal and minor/disabled-child deferrals in ORC 5162.21(C)(1) are categorical: ODM cannot decline to apply them. All of these turn on factual proof, though, which is where families lose them: dates of residence, level of care, disability status. Document everything.

Hardship Waivers

For estates that don't fit a categorical protection but where recovery would impose substantial hardship on the survivors, Ohio's hardship-waiver framework (in the relevant OAC chapter on codes.ohio.gov) is the discretionary safety net. Federal law requires every state to establish procedures to waive recovery in cases of undue hardship; Ohio's director of ODM (or designee) may waive recovery in whole or in part.1

Qualifying circumstances (Ohio applies these standards):

1. Sole income-producing asset: The estate is the sole income-producing asset of the survivors (typically a family farm or family business with limited income capacity), and recovery would force its sale, destroying the survivor's livelihood.
2. Survivor would become public-assistance eligible: Recovery would deprive the survivor of resources to the point where the survivor would qualify for SNAP, TANF, SSI, or Medicaid.
3. Necessary food, shelter, clothing: Recovery would deprive the survivor of necessary food, shelter, or clothing.
4. Equity contribution: The survivor demonstrates by clear and convincing evidence substantial personal financial contributions to the deceased recipient that establish an equity interest in the assets being recovered.
5. Older dependent survivor: A surviving family member at or above the published age threshold was financially dependent on the proceeds of the estate.
6. Disabled dependent survivor: A totally and permanently disabled survivor was financially dependent on the proceeds of the estate.

Process: the request must be made within thirty calendar days after the Attorney General's office mailed notice of the estate recovery claim (OAC 5160:1-2-07(I)). It may be made by an heir, a potential heir, or anyone with an interest in estate assets, and the decision is case-by-case at the ODM director's discretion. Thirty days is short, and it starts running from a mailing date, not from the day the letter reaches you.2

A second, separate thirty-day window. Running from the same mailing date, a person with an interest in the estate may present a claim that assets are exempt assets under OAC 5160:1-2-07(J): government reparation payments to special populations, and certain American Indian and Alaska Native income and resources, including protected trust and non-trust property, remainder income derived from it, natural-resource and treaty-right interests, and items of religious, cultural, or subsistence significance. This is not the hardship request and is not filed in its place.2

Two reliefs that are not waivers, and are easy to miss. First, a qualified long-term care partnership policy: the resource amount disregarded when eligibility was determined is disregarded again at estate recovery (OAC 5160:1-2-07(G)(1); ORC 5162.21(D)). Second, a claim against a non-liquid asset does not have to force a sale. Where the person responsible for the estate asks to satisfy the claim without selling it, the Attorney General's office may establish a payment schedule, a promissory note, or a lien instead (OAC 5160:1-2-07(F)). Ask for it in writing.2

Disqualifying conditions: Hardship waivers are denied where:

• The waiver would have the effect of benefitting creditors of lower priority than ODM.
• The Medicaid recipient engaged in estate-recovery-avoidance planning (e.g., divestments designed to evade recovery).
• The survivor seeking the waiver was a participant in the avoidance planning.

Practical reality: Hardship waivers are granted sparingly. Pro Seniors and Legal Aid Society of Cleveland report that the most successful hardship cases involve clearly documented family-farm sole-income facts and clearly documented survivor-on-the-edge-of-poverty facts. Waivers based on equity contribution are heavily document-dependent; the survivor must show specific financial contributions over time (mortgage payments, capital improvements, property tax payments) supported by bank statements, canceled checks, or receipts.

If you need a hardship waiver, engage Pro Seniors, Legal Aid Society of Cleveland, Legal Aid of Western Ohio, or Community Legal Aid Services Ohio as soon as the AG's claim notice arrives. The filing window is short, and DIY filings without legal-aid help often fail on procedural grounds.

TEFRA Pre-Death Liens

Most estate recovery happens after the recipient's death. But federal and Ohio law also permit a more aggressive tool: a pre-death lien filed against the recipient's real property while the recipient is still alive. These are commonly called TEFRA liens (after the federal Tax Equity and Fiscal Responsibility Act, which authorized them).

Ohio rule:

Default rule: ORC 5162.211(A) prohibits a pre-death lien on a recipient's property on account of correctly paid Medicaid services, except as division (B) below and ORC 5162.23 allow.

Exception: For a "permanently institutionalized individual", i.e., a Medicaid recipient receiving long-term institutional care whom ODM has determined cannot reasonably be expected to be discharged and return home, ODM may impose a lien under ORC 5162.211 against:2

• The real property of the recipient.
• The real property of the recipient's spouse, including jointly held property.

Procedure:

• Director signs a lien certificate.
• County Job and Family Services (CDJFS) files the lien in the appropriate county recorder's office.
• Recipient is entitled to fair-hearing rights before the lien is filed (constitutional due process requirement).

Bars to lien filing: ORC 5162.211(C) blocks the lien on the recipient's home when any of the following lawfully resides there:

• The recipient's spouse.
• The recipient's child under 21, or blind/disabled child of any age.
• A sibling who has an equity interest in the home and lived there for at least one year immediately before the recipient's admission to the institution.

Note what is not on that list. A resident caregiver child does not bar the lien. The caregiver-child protection sits in the recovery statute (ORC 5162.21(C)(2)(b)), not the lien statute, so a son or daughter who has provided years of care can still find a lien recorded against the home while the parent is alive. The equity-interest requirement runs the other way: it applies to the sibling in the lien bar, and Ohio's recovery bar at ORC 5162.21(C)(2)(a) does not impose it.

Lien dissolution: The lien dissolves automatically if the recipient is discharged from institutional care and returns home. This is significant, TEFRA liens don't survive a return-to-community.

Spousal property lien: Be careful here, because the common assumption is wrong. ORC 5162.211(B) lets ODM lien "the real property of the recipient's spouse, including any real property that is jointly held by the recipient and spouse", so the statute is not limited to the recipient's own fractional interest. What protects the community spouse is occupancy: if she lawfully resides in the home, ORC 5162.211(C)(1) bars the lien on that home outright. Other real property the couple owns has no such shield. And at the surviving spouse's eventual death, property that passed from the recipient through her is still exposed to recovery.2

Practical impact: TEFRA liens in Ohio are relatively rare compared to post-death recovery, but when they're filed, they can prevent the institutionalized recipient's family from selling the home, refinancing it, or taking out an equity loan during the recipient's lifetime. TEFRA-style liens can also encumber jointly held marital property in narrow circumstances.

If you receive a TEFRA lien notice in Ohio, engage legal aid or an elder-law attorney immediately. Hardship waivers, factual challenges to permanent-institutionalization status, and protected-resident analyses can sometimes defeat lien filings.

Lien Priority and Funeral Expenses

When ODM files a recovery claim against a probate estate, the claim has a defined statutory priority alongside other estate creditors. Federal Medicaid law and Ohio probate law place ODM's recovery claim within Ohio's probate priority schedule, after costs of administration, funeral and burial expenses, and family allowances, but ahead of most other unsecured creditors. Verify the current priority schedule in the Ohio probate code on codes.ohio.gov.

ODM's director may waive the priority of an estate recovery lien for last-illness expenses, administrative fees, and a narrow allowance for burial expenses. This narrow waiver does not cover the full cost of a typical funeral; families paying funeral expenses out of estate assets should be aware that ODM is generally a priority creditor and may receive payment before the funeral home.

Pre-paid funeral planning: Ohio Medicaid recipients can pre-pay irrevocable burial contracts up to specified limits as part of spend-down. These pre-paid contracts are not "estate" assets at death; they pre-fund the funeral directly with the funeral home and don't flow through probate. Ohio's burial-account exemption (an SSI-aligned designated burial fund plus unlimited room for irrevocable pre-need contracts) is a common spend-down tool.

The Ohio Attorney General's Medicaid Estate Recovery Unit

Operational responsibility for Ohio Medicaid estate recovery is split between two state agencies:

Ohio Department of Medicaid (ODM) is the rule-maker and the appeal authority:

• Promulgates Ohio's hardship-waiver OAC rule on codes.ohio.gov.
• Determines hardship waiver requests.
• Adjudicates Medicaid eligibility appeals that bear on recovery.
• Address: 50 W. Town St., Suite 400, Columbus, OH 43215.
• Consumer hotline: 800-324-8680.6

Ohio Attorney General's Office is the collection agency, operating through its Medicaid Estate Recovery Unit within the Collections Enforcement Section:

• Receives ODM 07400 probate notices and ODM 07408 TOD notices.
• Calculates the Medicaid recovery claim (services correctly paid for the recipient).
• Files claims in probate court and pursues TOD-blocked transfers.
• Negotiates settlements where appropriate.
• Forwards uncollected accounts to "Special Counsel", private law firms under contract with the AG's Collections Enforcement Section, for enforcement action.
• Address: 30 E. Broad St., 14th Floor, Columbus, OH 43215.
• Phone: 614-752-8085.

Forms:

• The Medicaid estate recovery notice form, submitted by the personal representative to the AGO within thirty days of the grant of letters or the filing of an application for release from administration.2
• ODM 07408, Notice to Medicaid Estate Recovery of Pending Transfer of Property by Transfer on Death (used by TOD Designation Affidavit beneficiaries).
• Hardship waiver request: no specific form number; informal letter is accepted, but should reference Ohio's hardship-waiver OAC rule specifically and document the qualifying circumstance.

Special Counsel: When the AG's in-house team can't collect (e.g., the estate is contested, beneficiaries refuse to cooperate, or the claim involves complex valuation disputes), the file is referred to a private law firm. Specific Special Counsel firm names rotate over time and are not consistently published. If your family receives a recovery demand letter from a private law firm purporting to act on behalf of the State of Ohio Medicaid Estate Recovery Unit, do not pay without verifying the Special Counsel assignment with the AG's Collections Enforcement Section. There have been past instances of fraudulent demand letters; legitimate Special Counsel will be on the AG's published list.

Not the same program: the vendor HMS handles Ohio's Medicaid tort and casualty subrogation, recovering from auto and liability insurers for accident-related care. It does not handle estate recovery.

Three Worked Examples

Example 1: The TOD Designation Affidavit Trap

A retired homeowner in northeast Ohio owns a paid-off home. On the recommendation of a real-estate attorney, she signs a TOD Designation Affidavit naming her daughter as the beneficiary; the affidavit is recorded with the county recorder.

Years later, she suffers a stroke and enters a nursing facility, qualifies for Medicaid LTSS, and accumulates substantial Medicaid spending before dying.

At death:

• The daughter goes to the county recorder's office to record the post-death Affidavit of Confirmation and claim title to the home.
• Before recording the transfer, the recorder hands the daughter an ODM 07408 form. Because she knows her mother received Medicaid, ORC 5302.221(C) requires her to send the completed form to the Estate Recovery Unit.
• The daughter submits the form; the Unit must present its claim no later than 90 days after receiving the notice, or one year after death, whichever is later (ORC 2117.061).
• Within that window, the Estate Recovery Unit calculates Medicaid spending and asserts a recovery claim against the home, because under ORC 5162.21 the TOD-transferred home was an asset in which the decedent held legal title at death.2

The daughter's options:

• Pay the recovery claim from her own funds and keep the home (rare; most adult children don't have that much in liquid assets).
• Sell the home, pay the recovery claim from sale proceeds, and keep any remaining equity.
• Refuse to record the Affidavit of Confirmation; the home stays in the decedent's name and ultimately the State forecloses or the family abandons.
• File a hardship waiver request (unlikely to succeed if the survivor has independent means and didn't meet the caregiver-child standard).

What the mother should have done much earlier: seen an Ohio elder-law attorney rather than a generalist, and funded the home into a MAPT well outside the federal lookback. The lesson is the runway. The trust has to be in place before the lookback window closes around a Medicaid application, not after.

Example 2: Spousal Survival and Future Recovery

An older man enters a nursing facility and qualifies for Medicaid LTSS via the federal Special Income Limit using a Miller Trust. His community spouse continues to live in the marital home (titled JTWROS) under the federal spousal-impoverishment protections.

He accumulates substantial Medicaid services over a multi-year stay before dying.

At his death:

• The home passes to the surviving spouse by survivorship.
• ODM files a deferred recovery claim against the estate, but recovery is deferred during the surviving spouse's lifetime under Ohio's surviving-spouse rule.
• The estate is closed in probate with a notation of the deferred claim.

The surviving spouse's situation afterward:

• Continues living in the home.
• Receives a surviving-spouse Social Security benefit plus her own income.
• Should engage an Ohio elder-law attorney to plan for her own potential future LTSS need and to address the deferred Medicaid recovery.

Her options for the home:

• Fund the home into her own MAPT. The federal lookback runs from funding.
• Lifetime transfer the home to her adult children (lookback consequence if she later applies for Medicaid).
• Sell the home and downsize, using proceeds to pay for assisted living.
• Do nothing - at her death, the deferred recovery against her late spouse becomes active against assets that passed from him to her to a third party (the children).

If she does nothing: At her eventual death, the home passes to the children, and the deferred recovery becomes active. The children may face a recovery claim that consumes most or all of the home's equity.

If she funds a MAPT outside the federal lookback before her death: The home passes to the children outside of recovery (because the home is no longer "an asset that passed from one spouse to the other to a third party at the second spouse's death"; she divested it during her lifetime).

This example illustrates why surviving-spouse deferral planning matters. Many families assume that if the institutionalized spouse dies and the home passes to the surviving spouse, recovery is over. It isn't. It's deferred.

Example 3: Caregiver-Child Success

A son moves into his mother's home years before her institutionalization to provide full-time care after she developed dementia. He quits his outside job, applies for the Ohio Home Care Waiver and later MyCare Ohio Waiver consumer-directed personal care service so he can be paid as her personal care provider, and provides round-the-clock personal care including transfers, medication management, and supervision of dementia behaviors.

Eventually her dementia progresses and she requires nursing-facility level of care. She is admitted to a memory-care nursing facility and accumulates substantial Medicaid spending before dying.

Caregiver-child analysis:

• The son lived in the home for well more than the federally required residency period immediately preceding institutionalization.
• He provided care for his mother. The level-of-care assessment from the AAA care coordinator documents that she required nursing-facility-level care during that period.
• His care delayed institutionalization. The physician's statement and the AAA records establish that without his care, she would have entered a nursing facility much earlier, saving Medicaid considerable additional spending.

Pre-institutionalization caregiver-child deed: Before her institutionalization, his elder-law attorney advised executing a caregiver-child deed transferring title from mother to son. The transfer is exempt from the Medicaid lookback under the federal caregiver-child rule. The home is now the son's, not his mother's.

At her death:

• The home is already in the son's name (transferred before death).
• Her other assets are minimal.
• The estate is opened in probate. The son files ODM 07400.
• ODM has a recovery claim but only minimal probate assets to satisfy it.
• The home is not in the estate; the son received it via the caregiver-child deed before death, and the federal exception applied.
• ODM recovers from what's in the probate estate; the rest is uncollectable.

The son keeps the home. This is the planning success story that motivates Ohio elder-law practice.

The key was acting before institutionalization - the caregiver-child deed has to be executed while the parent is still in the home and the child is still providing care. Retroactive caregiver-child claims after the parent has already entered a nursing facility are much harder to establish.

Ohio-Specific Estate Recovery Pitfalls

1. TOD Designation Affidavits don't shield the home in Ohio. This is the single most common mistake. Ohio's expanded-recovery statute (ORC 5162.21) plus the recorder-notice duty in ORC 5302.221 close the loophole. Don't rely on TOD affidavits for Medicaid planning.2

2. Joint-with-rights-of-survivorship titling doesn't shield the home, either. The decedent's interest at death is reachable.

3. POD and TOD bank and brokerage accounts don't shield from recovery. The "other arrangement" language sweeps them in.

4. Revocable living trusts don't shield from recovery, because the grantor retained a legal interest. Irrevocable (MAPT) is the structure that works.

5. Lady Bird (enhanced life estate) deeds aren't recognized in Ohio.

6. The "12-month rule" isn't really 12 months. It is 90 days from notice or one year from death, whichever is later, and personal representatives can't run the clock.

7. Personal representatives are personally liable for distributing estate proceeds without giving notice or paying the claim.

8. The surviving spouse deferral isn't a permanent waiver. It delays recovery for her lifetime; it does not extinguish it.

9. Spousal refusal doesn't work in Ohio the way it does in New York.

10. The caregiver-child exception requires care for the specified period immediately preceding institutionalization, not some earlier stretch. Documentation is critical.

11. A hardship request is due within thirty calendar days of the AGO's mailing of the claim notice, and a separate exempt-assets claim runs on its own thirty-day clock from the same date. Engage legal aid the day the letter arrives.2

12. TEFRA pre-death liens dissolve if the recipient returns home. Discharge back to the community drops the lien automatically.

The Federal Home Equity Cap (Indirect Effect)

For 2026, the Medicaid home-equity limit for long-term care eligibility ranges from a federal minimum of $752,000 to a state-elected maximum of $1,130,000, indexed annually to inflation under 42 U.S.C. 1396p(f); the minimum applies unless a state elects a higher amount, and Ohio applies it, at $752,000 for 2026.1,7 Recent federal legislation changed how that ceiling is set going forward: Section 71108 of the One Big Beautiful Bill Act (Public Law 119-21, signed July 4, 2025) caps the limit for non-agricultural homes at a flat $1,000,000, with no further inflation indexing, effective January 1, 2028 (homes on land zoned for agricultural use stay under the indexed rules).1

Section 71108(a) reaches subsection (f)(1) only, so the rest of 42 U.S.C. 1396p(f) survives it, and a home worth more than the limit does not by itself end eligibility in 2028 any more than it does today. Under (f)(2) the equity test does not apply at all while the applicant's spouse, a child under 21, or a blind or permanently and totally disabled child lawfully resides in the home. Under (f)(3) nothing prevents an applicant from using a reverse mortgage or a home equity loan to bring the equity interest down below the limit. Under (f)(4) the Secretary must maintain a hardship-waiver process for the limit itself.1

The change does not directly amend Medicaid estate-recovery law, but it has an indirect effect: more Ohio homes will fall above the home-equity exemption ceiling over time, pushing more high-equity homeowners to spend down or restructure home equity before LTSS Medicaid is available. To the extent that more applicants are forced to spend down home equity, the underlying value flows into Medicaid LTSS eligibility and, ultimately, at the recipient's death, into the recoverable estate. The cap therefore expands the universe of recovery dollars over the long term, even though it doesn't change the recovery rules themselves.

CMS implementation guidance on the home-equity cap is pending; watch for CMS sub-regulatory guidance before the federal effective date.

Pending Reform Watch

Ohio reform bill: House Bill 318 (136th General Assembly) sits in the House Medicaid committee with no recorded action since its June 4, 2025 referral. Verify current status and read the bill text on ohiohouse.gov.2

Federal reform: bills to eliminate the federal recovery mandate are reintroduced periodically. Check any of them on Congress.gov rather than planning around one.

Home-equity cap implementation: CMS sub-regulatory guidance on the 2028 cap is still pending.

Where to Get Help

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

Related Reading

• Ohio Medicaid Pillar Guide, the parent landing page covering all of Ohio Medicaid LTSS, eligibility, waivers, and benefits.
• Next Generation MyCare Ohio, Ohio's FIDE-SNP architecture for full-benefit dual-eligibles 21+.
• Ohio Personal Needs Allowance, the residual-income entitlement for nursing-home residents.
• Ohio Eligibility and Income Limits, figures across MAGI, ABD, and LTC pathways.
• Ohio Miller Trust / Qualified Income Trust, the income-cap workaround for above-SIL applicants.
• PASSPORT Waiver, Ohio's flagship in-home HCBS waiver for ages 60+.
• Assisted Living Waiver, Ohio's HCBS waiver for residential settings.
• Ohio Home Care Waiver, Ohio's waiver for younger physically disabled adults.
• MyCare Ohio Waiver, the dual-eligible waiver consolidating PASSPORT/AL/OHC for Next Gen MyCare members.
• Ohio Medicaid Managed Care Plans, for families navigating Medicaid and Medicare coverage together.
• Ohio Caregiver Programs, paid family caregiving programs in Ohio (C-HCAS, CD-PCS, SFC).
• How to Get Paid as a Family Caregiver in Ohio, application paths.
• Ohio Nursing Homes, choosing and paying for nursing-facility care in Ohio.

Cross-state estate-recovery context:

• Tennessee Medicaid, recovery limited to CHOICES long-term-care services received at 55 or older, with a cost-effectiveness release for claims of $10,000 and below.1
• Massachusetts Medicaid, probate-only, narrowed to the federal service floor for deaths on or after August 1, 2024.
• New York Medicaid, for how a different large state runs its program.
• California Medicaid (Medi-Cal), confined to the probate estate and federally required services for deaths on or after January 1, 2017.

Federal context:

• Medicaid Estate Recovery Explained, the federal hub on the OBRA-93 mandate, the federal estate-recovery statute, the cross-state matrix, hardship-waiver standards, and the cross-state planning toolkit.
• Medicaid Planning Strategies, the national playbook on MAPTs, gifting, annuities, and other tools that work across states.
• Federal FIDE-SNP Hub, for the federally integrated dual-eligible architecture.

Learn More

Find personalized help planning around Ohio 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.