How will JTWROS law benefit surviving spouse if the state can override this protection using the "expanded estate" designation?

The portion his estate will owe in our state is his equity share. My equity share will stay with me. If the place sold for 100K I would net 50K from the sale. His 50K will go to the state.

So JTWROS is of no help if the state is allowed to defeat this law designed to protect surviving spouses. States can apply an "expanded" definition of an estate - such as JTWROS property that does not pass via Probate.

1) Where I live, an estate valued at 25K or less is too costly to recover. So the 25K can be distributed to any heirs or a community spouse. It can be used to pay any debts.

2) If the estate is valued at 26K, the state tries to recovers the entire 26K. It does not disregard the first 25K. This is workable if there is no surviving spouse - just apply it to the bill and write off the remainder.

3) States are allowed by Federal law to "expand" or collect beyond the Probate estate. In our case, I will be 100% owner through JTWROS. Because my spouse owns half prior to his death, his estate is "expanded" to include any JTWROS assets that would normally be both of ours. Expansion as I can see undermines/eliminates the protections normally afforded a surviving spouse.

I consulted an attorney who clarified if I sold while my spouse was in the nursing home, half the sales proceeds would belong to my spouse and that would be paid to the nursing home. I would loose some of my assets the second time around due to the fact that we would have to reapply and be reassessed for Medicaid.

If I allowed the JTWROS law to work for me, his equity share will belong to me after his death under standard probate law. Medicaid law overrides JTWROS protection. JTWROS protection is successfully defeated in our state just by expanding the definition of estate to include assets that normally pass to the surviving spouse. Most, if not all, of these assets become the property of the surviving spouse.

A bill was passed at the state level but can only be implemented if approved at the federal level. This law would allow small estates to keep the first 25K, regardless of the estate's total value.

Anything above the 25K would be payable to the state. Everything above 25K would be recovered by the state.

Currently our estate recovery is so aggressive and disproportionately applied to smaller estates that it got the attention of the state legislator and governor's offices. That's pretty telling, considering the politicians usually are enthusiastic when it comes to collecting money for the state budget.

Your right in that not all states are so aggressive with this, but our state is because it exercised it's option to "expand" recovery efforts beyond the probate estate.

So again, I'm trying to make peace with this law that allows the state to ignore/defeat the protections normally allowed the surviving spouse.

I hope you do in fact live in a less aggressive state than I live in. My parent's state is quite aggressive too, but fortunately I didn't have to deal with estate recovery for them. I only had to deal with paying normal medical and other expenses, not nursing home expenses.

Again, please explain how JTWROS is protection for a community spouse.

I live in NJ. I just got my paperwork for the Medicaid lean on my Moms house.

It will take to long to type out the paragraph but it read that if a member of the family has resided in the house as main residency and it was the Medicaid recipients main residency then a lean will be put on the house but not moved on until the family member dies, sells the property or leaves. So as long as you live in the house the money does not need to be paid back.

Under federal law, MERP can only go after the portion your husband owned after he dies. Have you spoke to an estate attorney about this? What makes you think MERP will go after his share? Not all states are aggressive when it comes to this.