Your father died in Texas without a will and you established your right to inherit his property by signing an affidavit of heirship. You’re wondering whether the Medicaid Estate Recovery Program (MERP) can claim your land or the proceeds from selling your father’s house — especially since two years have passed and MERP has not taken any action.
Key Points:
1. What is MERP?
The Texas Medicaid Estate Recovery Program (MERP) allows the state to seek repayment from the estate of a deceased person who received Medicaid long-term care benefits after age 55. This typically includes claims against real property (like a house) that passes through probate.
2. Timing and Notice
When a Medicaid recipient dies, the state is supposed to send notice to the estate or heirs of its intent to file a claim. However, there is no strict deadline for the state to file a MERP claim, but Texas law generally requires claims against an estate to be made within four years of the decedent’s death (Texas Estates Code § 355.001).
3. Affidavit of Heirship and Sale of Property
An affidavit of heirship is often used to transfer title to heirs when there is no will and no formal probate. However, property transferred by affidavit of heirship is still considered part of the probate estate for MERP purposes (Texas HHS Guide to MERP).
If you sell the property, the proceeds may still be subject to a MERP claim if the state asserts one within the allowable period.
4. What If Two Years Have Passed and MERP Has Not Acted?
The fact that two years have passed does not automatically bar MERP from making a claim. The state can still file a claim within the four-year window.
If you sell the house and distribute or spend the proceeds before a MERP claim is made, you (and other heirs) could potentially be personally liable to repay the claim up to the value of the property received.
5. Are There Exceptions or Defenses?
MERP will not pursue recovery if:
There is a surviving spouse.
There is a child under 21, or a child of any age who is blind or permanently disabled.
The value of the estate is $10,000 or less, or the Medicaid costs are $3,000 or less.
The cost of selling the property exceeds its value.
Undue hardship can be demonstrated (e.g., the property is a family farm or the only income-producing asset for heirs).
If the property was transferred outside of probate (e.g., by a Transfer on Death Deed), MERP generally cannot recover against it (Rania Combs Law).
6. Practical Considerations
Title companies may be reluctant to insure clear title for up to two years after death unless a court proceeding (like probate) is completed, because of the risk of a MERP claim.
If you have already sold the property, keep records of the sale and any distributions to heirs. If a claim is made, you may need to show how the proceeds were handled.
Scenario
Can MERP Recover?
Notes
Property sold after affidavit of heirship, within 4 years of death
Yes, if MERP files a claim
Heirs may be personally liable up to the value received
Property sold after 4 years
Unlikely, unless fraud or other exceptions apply
Statute of limitations may bar claim
Property transferred by Transfer on Death (TOD) Deed
No
Not part of probate estate
References and Further Reading
Texas HHS Guide to MERP
Texas Estates Code § 355.001
Rania Combs Law: Transfer on Death Deed and MERP
Texas Estate Planning Handbook (see Medicaid and Elder Law Planning section)
Bottom Line
If you sell your father’s house after filing an affidavit of heirship and two years have passed since his death, MERP can still file a claim against the estate (and potentially against you as an heir) within four years. The safest course is to wait out the four-year period or ensure that any sale proceeds are available to satisfy a potential claim. If the property was transferred by a Transfer on Death Deed, MERP generally cannot recover.
For more details, see the official Texas HHS MERP guide.
This answer is based on current Texas law and authoritative sources as of 2024.
Disclaimer: This is not legal advice and may not be accurate. The T&Cs of LawY apply to this response.
