lawyer at desk

Ask a legal question, get an answer ASAP!
Click here to chat with a lawyer about your rights.

Terms Used In Wisconsin Statutes 49.496

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
  • Appropriation: The provision of funds, through an annual appropriations act or a permanent law, for federal agencies to make payments out of the Treasury for specified purposes. The formal federal spending process consists of two sequential steps: authorization
  • Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
  • Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
  • Contract: A legal written agreement that becomes binding when signed.
  • Decedent: A deceased person.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
  • Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
  • in writing: includes any representation of words, letters, symbols or figures. See Wisconsin Statutes 990.01
  • Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.
  • Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Land: includes lands, tenements and hereditaments and all rights thereto and interests therein. See Wisconsin Statutes 990.01
  • Lien: A claim against real or personal property in satisfaction of a debt.
  • Life estate: A property interest limited in duration to the life of the individual holding the interest (life tenant).
  • Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
  • Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
  • Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
  • Personal property: All property that is not real property.
  • Personal property: includes money, goods, chattels, things in action, evidences of debt and energy. See Wisconsin Statutes 990.01
  • Personal representative: means a person, however denominated, who is authorized to administer a decedent's estate. See Wisconsin Statutes 990.01
  • Probate: Proving a will
  • Promulgate: when used in connection with a rule, as defined under…. See Wisconsin Statutes 990.01
  • Property: includes real and personal property. See Wisconsin Statutes 990.01
  • Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
  • real property: includes lands, tenements and hereditaments and all rights thereto and interests therein. See Wisconsin Statutes 990.01
  • Remainder: An interest in property that takes effect in the future at a specified time or after the occurrence of some event, such as the death of a life tenant.
  • Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
  • Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
  • State: when applied to states of the United States, includes the District of Columbia, the commonwealth of Puerto Rico and the several territories organized by Congress. See Wisconsin Statutes 990.01
  • Sworn: includes "affirmed" in all cases where by law an affirmation may be substituted for an oath. See Wisconsin Statutes 990.01
  • Tenancy in common: A type of property ownership in which two or more individuals have an undivided interest in property. At the death of one tenant in common, his (her) fractional percentage of ownership in the property passes to the decedent
   (1)    Definitions. In this section:
      (af)    “Decedent” means a deceased recipient or a deceased nonrecipient surviving spouse, whichever is applicable.
      (ah)    “Disabled” has the meaning given in s. 49.468 (1) (a) 1.
      (b)    “Home” means property in which a person has an ownership interest consisting of the person’s dwelling and the land used and operated in connection with the dwelling.
      (bk)    “Long-term care program” means any of the following:
         1.    The family care program providing the benefit under s. 46.286.
         2.    The self-directed services option that operates under a waiver from the secretary of the federal department of health and human services under 42 U.S. Code § 1396n (c) in which an enrolled individual selects his or her own services and service providers.
         3.    The family care partnership program that is an integrated health and long-term care program operated under an amendment to the state medical assistance plan under 42 USC 1396u-2 and a waiver under 42 U.S. Code § 1396n (c).
         4.    The program for all-inclusive care for the elderly under 42 USC 1396u-4.
         5.    Any program that provides long-term care services and is operated by the department under an amendment to the state medical assistance plan under 42 U.S. Code § 1396n (i) or 42 USC 1396u-2; a waiver of medical assistance laws under 42 U.S. Code § 1396n (c), 42 U.S. Code § 1396n (b) and (c), or 42 U.S. Code § 1396u; or a demonstration project under 42 U.S. Code § 1315 or 42 U.S. Code § 1396n (c).
      (bw)    “Nonrecipient surviving spouse” means any person who was married to a recipient while the recipient was receiving services for which the cost may be recovered under sub. (3) (a) and who survived the recipient.
      (c)    “Nursing home” has the meaning given in s. 50.01 (3).
      (cm)    “Property of a decedent” means all real and personal property to which the recipient held any legal title or in which the recipient had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.
      (d)    “Recipient” means a person who receives or received medical assistance.
   (2)   Liens on the homes of nursing home residents and inpatients at hospitals.
49.496(2)(a)    (a) Except as provided in par. (b), the department may obtain a lien on a recipient’s home if the recipient resides in a nursing home, or if the recipient resides in a hospital and is required to contribute to the cost of care, and the recipient cannot reasonably be expected to be discharged from the nursing home or hospital and return home. The lien is for the amount of medical assistance paid on behalf of the recipient that is recoverable under sub. (3) (a).
      (b)    The department may not obtain a lien under this subsection if any of the following persons lawfully reside in the home:
         1.    The recipient’s spouse.
         2.    The recipient’s child who is under age 21 or is disabled.
         3.    The recipient’s sibling who has an ownership interest in the home and who has lived in the home continuously beginning at least 12 months before the recipient was admitted to the nursing home or hospital.
      (c)    Before obtaining a lien on a recipient’s home under this subsection, the department shall do all of the following:
         1.    Notify the recipient in writing of its determination that the recipient cannot reasonably be expected to be discharged from the nursing home or hospital, its intent to impose a lien on the recipient’s home and the recipient’s right to a hearing on whether the requirements for the imposition of a lien are satisfied.
         2.    Provide the recipient with a hearing if he or she requests one.
      (d)    The department shall obtain a lien under this subsection by recording a lien claim in the office of the register of deeds of the county in which the home is located.
      (e)    The department may not enforce a lien under this subsection while the recipient lives unless the recipient sells the home and does not have a living child who is under age 21 or disabled or a living spouse.
      (f)    The department may not enforce a lien under this subsection after the death of the recipient as long as any of the following survive the recipient:
         1.    A spouse.
         2.    A child who is under age 21 or disabled.
         3.    A child of any age who resides in the home, if that child resided in the home for at least 24 months before the recipient was admitted to the nursing home or hospital and provided care to the recipient that delayed the recipient’s admission to the nursing home or hospital.
         4.    A sibling who resides in the home, if the sibling resided in the home for at least 12 months before the recipient was admitted to the nursing home or hospital.
      (g)    The department may enforce a lien imposed under this subsection by foreclosure in the same manner as a mortgage on real property.
      (h)    The department shall file a release of a lien imposed under this subsection if the recipient is discharged from the nursing home or hospital and returns to live in the home.
   (3)   Recovery from estates.
      (a)    Except as provided in par. (b), the department shall file a claim against the estate of a recipient, and against the estate of a nonrecipient surviving spouse, for all of the following, subject to the exclusion of any amounts under the Long-Term Care Partnership Program established under s. 49.45 (31), unless already recovered by the department under this section:
         1.    The amount of medical assistance paid on behalf of the recipient while the recipient resided in a nursing home or while the recipient was an inpatient in a hospital and was required to contribute to the cost of care.
         2.    The following medical assistance services paid on behalf of the recipient after the recipient attained 55 years of age:
            a.    Home-based or community-based services under 42 U.S. Code § 1396d (a) (7) and (8).
            am.    All services provided to an individual while the individual is participating in a long-term care program.
            d.    Personal care services under s. 49.46 (2) (b) 6. j.
      (ad)    The amount the department may claim against an estate of a recipient, or an estate of a nonrecipient surviving spouse, for services that are described under par. (a) 2. am. and that are provided by a managed long-term care program funded by capitated payments is equal to the amount of the capitated payment for the recipient.
      (ag)    The affidavit of a person designated by the secretary to administer this subsection is evidence of the amount of the claim.
      (aj)   
         1.    Property that is subject to the department’s claim under par. (a) in the estate of a recipient or in the estate of a nonrecipient surviving spouse is all property of a decedent that is included in the estate.
         2.    There is a presumption, consistent with s. 766.31, which may be rebutted, that all property in the estate of a nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of the property in the estate of the nonrecipient surviving spouse is subject to the department’s claim under par. (a).
      (am)    The court shall reduce the amount of a claim under par. (a) by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent’s heirs or the beneficiaries of the decedent’s will to retain the following personal property:
         1.    The decedent’s wearing apparel and jewelry held for personal use.
         2.    Household furniture, furnishings and appliances.
         3.    Other tangible personal property not used in trade, agriculture or other business, not to exceed in value the amount specified in s. 861.33 (1) (a) 4.
      (b)    A claim under par. (a) is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.
      (c)   
         1.    If the department’s claim is not allowable because of par. (b) and the estate includes an interest in any real property, including a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the real property subject to a lien in favor of the department for the amount described in par. (a). The personal representative or petitioner for summary settlement or summary assignment of the estate shall record the final judgment as provided in s. 863.29, 867.01 (3) (h), or 867.02 (2) (h).
         2.    If the department’s claim is not allowable because of par. (b), the estate includes an interest in any real property, including a home, and the personal representative closes the estate by sworn statement under s. 865.16, the personal representative shall stipulate in the statement that the real property is assigned subject to a lien in favor of the department for the amount described in par. (a). The personal representative shall record the statement in the same manner as described in s. 863.29, as if the statement were a final judgment.
      (d)    The department may not enforce a lien under par. (c) as long as any of the following survive the decedent:
         1.    A spouse.
         2.    A child who is under age 21 or disabled.
      (dm)    All of the following apply to a lien under par. (c) that the department may not enforce because of par. (d):
         1.    If the decedent’s surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.
         2.    The department shall release the lien in the circumstances described in s. 49.849 (4) (c) 2.
      (e)    The department may enforce a lien under par. (c) by foreclosure in the same manner as a mortgage on real property.
      (f)    The department may contract with or employ an attorney to probate estates to recover under this subsection the costs of care.
   (4)   Administration.
      (a)    The department may require a county department under s. 46.215, 46.22, or 46.23 or the governing body of a federally recognized American Indian tribe administering medical assistance to gather and provide the department with information needed to recover medical assistance under this section. Except as provided in par. (b), the department shall pay to a county department or tribal governing body an amount equal to 5 percent of the recovery collected by the department relating to a beneficiary for whom the county department or tribal governing body made the last determination of medical assistance eligibility. A county department or tribal governing body may use funds received under this paragraph only to pay costs incurred under this paragraph and, if any amount remains, to pay for improvements to functions required under s. 49.78 (2). The department may withhold payments under this paragraph for failure to comply with the department’s requirements under this paragraph. The department shall treat payments made under this paragraph as costs of administration of the Medical Assistance program.
      (b)    The department shall credit to the appropriation account under s. 20.435 (4) (im) any amount that the department would otherwise pay under par. (a) to a county department under s. 46.215 for any recovery collected by a department employee or officer, or by a county employee or officer under the management of the department.
   (5)   Use of funds. From the appropriation under s. 20.435 (4) (im), the department shall pay the amount of the payments under sub. (4) (a) that is not paid from federal funds, shall pay to the federal government the amount of the funds recovered under this section equal to the amount of federal funds used to pay the benefits recovered under this section, and shall spend the remainder of the funds recovered under this section for medical assistance benefits under this subchapter.
   (6)   Applicability.
      (a)    The department may recover amounts under this section for medical assistance benefits paid on and after August 15, 1991.
      (b)    The department may file a claim under sub. (3) only with respect to a recipient who dies after September 30, 1991.
   (6m)   Waiver due to hardship. The department shall promulgate rules establishing standards for determining whether the application of this section would work an undue hardship in individual cases. If the department determines that the application of this section would work an undue hardship in a particular case, the department shall waive application of this section in that case.
   (7)   Installment payments. If a recovery under sub. (3) does not work an undue hardship on the heirs of the estate, and if the heirs wish to satisfy the recovery claim without selling a nonliquid asset that is subject to recovery, the department may establish a reasonable payment schedule subject to reasonable interest.

  Previous section
Next section  
 Subchapter IV Contents