State Codes and Statutes

Statutes > Wisconsin > 867 > 867.035

867.035

867.035 Transfer by affidavit; recipients of certain benefits.

867.035(1)

(1)

867.035(1)(a)

(a) Subject to par. (bm), the department of health services may collect from the property of a decedent, including funds of a decedent that are held by the decedent immediately before death in a joint account or a P.O.D. account, by affidavit under sub. (2) or by lien under sub. (2m) an amount equal to the medical assistance that is recoverable under s. 49.496 (3) (a), the long-term community support services under s. 46.27 that is recoverable under s. 46.27 (7g) (c) 1., the family care benefit that is recoverable under rules promulgated under s. 46.286 (7), or the aid under s. 49.68, 49.683, or 49.685 that is recoverable under s. 49.682 (2) (a) and that was paid on behalf of the decedent or the decedent's spouse, if all of the following conditions are satisfied:

867.035(1)(a)1.

1. No person files a petition for administration or summary settlement or assignment of the decedent's estate within 20 days of death.

867.035(1)(a)2.

2. The decedent died after September 30, 1991.

867.035(1)(a)3.

3. The decedent is not survived by a spouse, a child who is under age 21 or a child who is disabled, as defined in s. 49.468 (1) (a) 1.

867.035(1)(a)4.

4. The value of the property subject to administration in this state left by the decedent, after payment of burial costs, does not exceed the amount under s. 867.03 (1g) (intro.).

867.035(1)(bm)

(bm) The department of health services shall reduce the amount of its recovery under par. (a) by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent's heirs or beneficiaries under the decedent's will to retain the following personal property of the decedent:

867.035(1)(bm)2.

2. Wearing apparel and jewelry held for personal use.

867.035(1)(bm)3.

3. Household furniture, furnishings, and appliances.

867.035(1)(bm)4.

4. Other tangible personal property not used in trade, agriculture, or other business, not exceeding in value the amount specified in s. 861.33 (1) (a) 4.

867.035(2)

(2) A person who possesses property of a decedent shall transmit the property to the department of health services, if the conditions in sub. (1) (a) 1. to 4. are satisfied, upon receipt of an affidavit by a person designated by the secretary of health services to administer this section showing that the department paid on behalf of the decedent or the decedent's spouse recoverable benefits specified in sub. (1) (a). Upon transmittal, the person is released from any obligation to other creditors or heirs of the decedent.

867.035(2m)

(2m)

867.035(2m)(a)

(a) If the conditions in sub. (1) (a) 1., 2., and 4. are satisfied, the department of health services shall have a lien in the amount that it may recover under sub. (1) (a) on any interest in the decedent's home, as defined in s. 49.496 (1) (b), transferred under s. 867.03 (1g). The department may record the lien in the office of the register of deeds of the county in which the real property is located. The department may enforce the lien by foreclosure in the same manner as a mortgage on real property, unless any of the following is alive:

867.035(2m)(a)1.

1. The decedent's spouse.

867.035(2m)(a)2.

2. A child of the decedent if the child is under age 21 or disabled, as defined in s. 49.468 (1) (a) 1.

867.035(2m)(b)

(b) If the conditions in sub. (1) (a) 1. to 4. are satisfied, the department of health services shall have a lien in the amount that it may recover under sub. (1) (a) on any interest in any real property of the decedent transferred under s. 867.03 (1g). The department may record the lien in the office of the register of deeds of the county in which the real property is located and may enforce the lien by foreclosure in the same manner as a mortgage on real property.

867.035(3)

(3) If a person has a valid claim against the decedent's estate that would have a higher priority under s. 859.25 (1) if the estate were administered than the department of health services would have under s. 859.25 (1) (e) and the person demands payment in writing within one year of the date on which the property was transmitted to the department, the department shall pay to the person the value of the property collected under sub. (2) or the amount of the claim, whichever is less. The department may authorize any person who possesses property of the decedent to honor higher priority claims with the decedent's property before transmitting property to the department.

867.035(4)

(4) From the appropriation under s. 20.435 (4) (im), with respect to funds collected by the department under sub. (1) related to medical assistance paid on behalf of the decedent or the decedent's spouse, the department of health services shall pay claims under sub. (3), shall pay to the federal government from the amount recovered under this section and not paid out as claims under sub. (3) an amount equal to the amount of federal funds used to pay the benefits recovered under this section and shall spend the remainder of the amount recovered under this section for medical assistance benefits under subch. IV of ch. 49.

867.035(4m)

(4m) From the appropriation under s. 20.435 (7) (im), with respect to funds collected by the department under sub. (1) related to long-term community support services funded under s. 46.27 (7) paid on behalf of the decedent or the decedent's spouse, the department of health services shall pay claims under sub. (3) and shall spend the remainder of the funds recovered under this section for long-term community support services funded under s. 46.27 (7).

867.035(5)

(5) The department of health services shall promulgate rules establishing standards to determine whether the application of this section would work an undue hardship in individual cases. If the department of health services determines that the application of this section would work an undue hardship in a particular case, the department shall waive the application of this section in that case.

867.035 - ANNOT.

History: 1991 a. 39, 269; 1993 a. 16, 437; 1995 a. 27 ss. 7199y to 7206g, 9126 (19); 1997 a. 27; 1999 a. 9; 2001 a. 16; 2005 a. 216; 2007 a. 20 s. 9121 (6) (a).