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Medicaid Estate Recovery Hardship Waivers: How Families Ask for One

On this page
  1. How is a hardship waiver different from other protections?
  2. What do states count as undue hardship?
  3. Who can apply?
  4. What's the deadline?
  5. What should I gather?
  6. How should I word the request?
  7. Can a state waive part of the claim?
  8. What if the state says no?
  9. Where can I get help?
  10. Frequently asked questions
  11. Keep the paperwork straight

If a state Medicaid program files a claim against a parent's estate, heirs can ask for an undue hardship waiver. Medicaid.gov says every state must have procedures to waive estate recovery when it would cause undue hardship, but each state decides what counts and how to apply. Read the state's notice right away, because some states set short deadlines to apply.

How is a hardship waiver different from other protections?

Some estates are protected automatically. Medicaid.gov says states may not recover from the estate of someone survived by a spouse, a child under 21, or a blind or disabled child of any age. That isn't something you apply for. For the basics of estate recovery and these protections, see Medicaid estate recovery basics.

A hardship waiver is different. It's a request you make when recovery would cause serious harm to heirs, even though none of those automatic protections apply. This page focuses on how to ask for one.

What do states count as undue hardship?

Federal law requires states to have a waiver process but lets them define hardship. State examples show common themes.

Michigan's Medicaid agency says a hardship may exist when the estate is the survivors' main income-producing asset, like a family farm or business, or when it's a home of modest value. Michigan also uses a means test. The applicant's household income must be under 200% of the poverty level, and household savings and other resources under $10,000.

Indiana's estate recovery page says the state won't seek recovery if it would cause a "substantial and undue hardship" for the surviving heirs. Ask Indiana's estate recovery unit for its written criteria.

Other things some states consider:

  • A family member who lived in the home and cared for the parent, which delayed nursing home care.
  • An heir with a disability or very low income who lives in the home.

Michigan, for example, says the law presumes there's no hardship if the hardship came from moving assets to avoid estate recovery.

Your state's rules are what count. Ask the estate recovery unit for its written hardship criteria.

Who can apply?

Usually an heir or someone who would inherit, like a child or sibling. Indiana, for example, considers applications from immediate family members, and in exceptional cases from others. Check your state's rules.

What's the deadline?

It varies. Indiana says hardship applications must be submitted within 90 days of the date of the claim. Other states use different timeframes.

The notice of claim from the state should explain the deadline and how to apply. If it doesn't, call the number on the notice and ask.

What to say to the estate recovery unit:

"I received a notice of an estate recovery claim for [parent's name], who died on [date]. I'd like to apply for an undue hardship waiver. Can you send me the application, your written hardship criteria, and the deadline?"

What should I gather?

States usually want proof. Depending on the reason, that might include:

  • Proof of your relationship to the person who died.
  • Your household income and savings, such as tax returns, Social Security letters, and bank statements.
  • Proof you live in the home, like a driver's license, utility bills, or mail with the address.
  • The home's value, like a property tax assessment.
  • Proof of caregiving, such as doctors' notes or letters saying you provided care that delayed nursing home placement.
  • Proof of a family business or farm and the income it provides.
  • Medical or disability records, if your health is part of the hardship.

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How should I word the request?

Keep it short and factual, and tie it to your state's criteria.

Sample opening:

"I am applying for an undue hardship waiver of the estate recovery claim for [parent's name], case number [number], dated [date]. I am [relationship]. Recovery would cause undue hardship because [reason from your state's criteria: for example, the home is of modest value and is my only residence, and my household income is $[amount] a month]. Supporting documents are enclosed."

Then list each enclosure.

Can a state waive part of the claim?

Some states may waive only part of a claim, or put off collecting. Ask your state what options it has.

What if the state says no?

The denial should explain how to appeal or ask for a hearing. Follow it closely and watch the deadline. This is a good time to get free legal help.

Where can I get help?

  • Legal aid or an elder law attorney. Estate recovery involves state law. Find local legal aid and senior services through the Eldercare Locator at eldercare.acl.gov.
  • Your State Health Insurance Assistance Program (SHIP) can point you to resources. Find yours at shiphelp.org.
  • The state Medicaid estate recovery unit for the application and rules.

For a parent's other final bills, see medical bills after a parent dies.

Frequently asked questions

What is an undue hardship waiver?

A request to stop all or part of a Medicaid estate recovery claim because it would cause serious harm to heirs. Every state must have a process.

What counts as hardship?

Each state decides. Common examples include a home of modest value or a family farm or business heirs depend on.

How long do I have to apply?

It depends on the state. Indiana, for example, allows 90 days from the date of the claim. Check your notice.

Is a hardship waiver the same as the spouse and child protections?

No. Those protections apply automatically. A hardship waiver is something you apply for.

Keep the paperwork straight

Bill Review Coach is a monthly medical bill review service for seniors and their families. Upload your first bill free, no card needed. Snap a photo of a bill or notice, and you'll get back a plain-English summary of what it says and what to ask. Refer a friend and you both get a free month once they join the paid plan. You make the calls and write the emails; we help you know what to say.

General information, not legal advice. Check your own bill and notices.

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