QIM 35 | Part 4 of 5 | Elder Law & Medi-Cal Planning
Recovery here reaches only the probate estate — and one California waiver is broader than federal law requires.
A conversation between Ava and Michael
Ava:
The first question every family asks. Does the state take the house?
Michael Benavides, Esq.:
In California, less often than feared, for a structural reason. Under SB 833, recovery runs only against the recipient's probate estate.
Assets passing outside probate — through a properly funded living trust, for instance — are generally beyond post-death recovery.
Ava:
So the revocable trust that does nothing for eligibility does something here?
Michael Benavides, Esq.:
That is exactly the distinction, and it is the one families most often collapse.
The revocable trust does not shelter assets from the asset limit while your mother is alive. It may keep the house out of probate after she dies, which is where recovery operates. Same document, two completely different questions.
Ava:
What about the house while she is living?
Michael Benavides, Esq.:
Usually exempt. DHCS: if you own your home and plan to return to it, it is not counted. Also not counted if your spouse or registered domestic partner
lives there, or a dependent relative
does. The intent-to-return declaration on the application is routinely under-used.
Ava:
And the waivers you mentioned?
Michael Benavides, Esq.:
Three worth knowing. The caregiver-heir waiver
— an heir who lived in the home at least a year before institutionalization and provided care that delayed it. The sibling exemption
— a sibling with an equity interest who lived there at least a year immediately before the move. And the blind or disabled heir waiver, which is the one worth knowing about.
Ava:
Why that one?
Michael Benavides, Esq.:
Federal law requires waiver when the recipient's child
is blind or disabled. California extends it to any heir
who is blind or permanently disabled and would inherit — siblings, grandchildren, even non-relatives. In a family with a disabled member, that fact can reshape the whole recovery analysis, and families usually do not know it reaches them.
Ava:
I should say — these waiver details come from elder law commentary rather than a single state page, and recovery rules have their own history of litigation. How confident are we?
Michael Benavides, Esq.:
Confident on the structure, less so on every edge.
Probate-only recovery under SB 833 is well established. The specific waiver contours — how a county evaluates whether care 'delayed institutionalization,' for instance — are applied case by case. Treat these as doors worth checking, not as guarantees.
Ava:
What is the most common mistake?
Michael Benavides, Esq.:
Rushing a deed. A family panics, transfers the house to a child, and creates three problems: a potential transfer issue, a lost step-up in basis at death, and possible property tax reassessment. Very often the house needed the least emergency intervention of anything they owned.
Disclaimer
Attorney advertising. General information about California law, not legal advice; reading it creates no attorney-client relationship. Medi-Cal eligibility is highly fact-specific, published figures including the asset limits, the Community Spouse Resource Allowance and the Average Private Pay Rate are updated periodically, and some points in this series are expressly identified as unsettled. Confirm current rules with DHCS or your county Medi-Cal office before acting. Michael Benavides, Esq. — California State Bar No. 270714. Ava Benavides is an editorial brand voice, not an attorney, and does not provide legal analysis.
