The Top 10 Elder Law Court Rulings of 2009

Last Updated: 2/1/2010 9:49:37 AM

Below, in chronological order, are the top 10 elder law decisions for the past year, as measured by the number of readers of ElderLawAnswers' Weekly and Monthly e-letters who "clicked through" to the full story. At least two cases were argued by ElderLawAnswers member attorneys. Our Top 10 list does not include the U.S. Supreme Court's denial of certiorari in Estate of Barg, nor does it include a couple of sensational cases, one involving a disbarment and the other a suspension, that garnered much interest among our attorney readerships. (To view these decisions, click here and here.)

1. State That Has Not Expanded Definition of Estate May Still Recover Non-Probate Asset

   A Missouri appeals court finds that the state may use an accounting statute to recover Medicaid benefits from a decedent's estate even though the only asset is a non-probate asset and Missouri has not expanded its definition of estate to include non-probate assets. In Re Estate of Jones (Mo. Ct. App., W.D., No. 69310, Jan. 13, 2009). To read the full story, click here.

2. Annuity Purchased to Benefit Community Spouse Is Available Resource

   A New Jersey appeals court holds that under the Deficit Reduction Act of 2005 (DRA) a state may consider the value of an annuity purchased for the sole benefit of the community spouse in determining whether the Medicaid applicant is eligible. N.M. v. Div. Medical Assistance and Health Servs. (N.J. Sup. Ct., App. Div., No. A-0828-07T1, Feb. 26, 2009). To read the full story, click here.

3. Non-Saleable Promissory Note Is Improper Transfer

   The Ohio Court of Appeals finds that a non-saleable promissory note is a prohibited asset transfer for Medicaid eligibility purposes because the interest was deferred and it wasn't clear the note barred cancellation upon the loaner's death. Representing the plaintiff were attorneys Monica M. Newell and Dennis G. Mille of the ElderLawAnswers member firm of Phillips, Mille & Costabile Co., L.P.A. in Middleburg Heights, Ohio. Brown v. Ohio Dept. of Job & Family Servs. (Ohio Ct. App., 8th Dist., No. 92008, March 12, 2009). To read the full story, click here.

4. Trust Is an Available Resource Despite Discretionary Language

   The Minnesota Court of Appeals finds that a trust's principal and income are both available resources for Medicaid purposes even though the trust's language requires only payments of income to the beneficiary and gives discretion to the trustee to distribute principal. In The Matter of the Stephanie L. Wilcox Trust (Minn. Ct. App., No. A08-1458, May 19, 2009). To read the full story, click here.

5. Property Owned in Joint Tenancy Falls Under Estate Recovery Rules

   A Minnesota appeals court rules that the state may assert an estate recovery claim against property that was owned in joint tenancy at the time of a Medicaid recipient's death and that flowed into her surviving spouse's estate. In re the Estate of Grote (Minn. Ct. App., No. A08-1691, June 2, 2009). To read the full story, click here.

6. Irrevocable Trust Forbidding Distribution of Corpus Is Still Countable by Medicaid

   The Massachusetts appeals court finds that although an irrevocable, income-only trust expressly prohibits distributions of principal, other provisions in the trust could conceivably permit the trustees to invade trust assets, and thus the trust is countable for Medicaid purposes. Doherty v. Director of the Office of Medicaid (Mass. App. Ct., Essex, No. 08-P-939, June 18, 2009). To read the full story, click here.

7. Property of Trust That Bars Distributions That Interfere With Medicaid Eligibility Is Available Asset

   An Illinois appeals court finds that a trust that prevented the trustee from making distributions if it would interfere with public assistance is an available asset for Medicaid eligibility purposes. Vincent v. Dept. of Human Services (Ill. Ct. App., 3rd Dist., No. 3-08-0096, June 18, 2009). To read the full story, click here.

8. Community Spouse's Post-DRA Annuity Purchase Is Not an Improper Transfer

   An Ohio appeals court holds that the purchase of a post-DRA annuity by a community spouse is not an improper transfer of assets. The plaintiff was represented by Ohio ElderLawAnswers member attorneys William J. Browning and Don W. Fraser, formerly of the firm Caninizzaro, Bridges Jillisky & Streng, LLC. Vieth v. Ohio Dept. of Job & Family Services (Ohio Ct. App., 10th Dist., No. 08AP-635, July 30, 2009). To read the full story, click here.

9. 10th Circuit Reiterates: States Need Not Exempt (d)(4) Trusts From Asset Calculations

   Confirming an earlier decision, the 10th Circuit Court of Appeals rules that Congress left states free to count (d)(4)(A) and (d)(4)(C) trusts as available resources for Medicaid purposes. Hobbs v. Zenderman (10th Cir., No. 08-2099, Sept. 1, 2009). To read the full story, click here.

10. Annuity Purchase by Community Spouse Upheld in Federal Appeals Court Decision

    In a much-anticipated decision, the Third Circuit Court of Appeals affirms a U.S. district court ruling allowing a community spouse to purchase a DRA-compliant annuity to protect savings from the costs of her husband's nursing home care. Weatherbee v. Richman (3d Cir., No. 09-1399, Nov. 12, 2009). To read the full story, click here.