By Long Island Senior Advisor Care Team · August 12, 2026
New York recovers Medicaid long-term care costs after death only from the probate estate. On Long Island, where the house is usually the whole estate, that one limit decides what your family keeps and what the county claims.
The question nobody asks until the paperwork arrives
Families on Long Island tend to discover Medicaid estate recovery in one of two ways. Either an elder law attorney raises it during the application, or a letter arrives from the county months after a parent has died, referencing a claim against the estate for care the county paid for.
The letter is not a scam and it is not a mistake. Every state is required by federal law to try to recover what Medicaid spent on long-term care for people who were 55 or older when they received it, or who were permanently institutionalized at any age. New York does this through the county Department of Social Services, and the claim is measured from the date the recipient turned 55 or the date of permanent institutionalization, whichever came first.
What makes this survivable for most Long Island families is a limit New York chose and then kept: the state reaches only the probate estate. That single word does more work than any planning technique, and most families have never heard it explained. This article is general information, not legal advice, and estate recovery is one of the areas where an hour with a New York elder law attorney genuinely pays for itself.
New York expanded estate recovery, then let it expire, and the paper trail is public
For about three months in 2011, New York did what a number of states do permanently: it counted assets that pass outside probate as part of the estate. Chapter 59 of the Laws of 2011 amended Social Services Law § 369(6) to elect that federal option, and the Department of Health issued 11 OHIP/ADM-8 instructing counties to pursue jointly held bank accounts, jointly held real property, retained life estates, trust interests and annuities for recoveries filed on or after September 8, 2011.
Then the regulation that implemented it lapsed. In GIS 11 MA/028, the Department of Health told local district commissioners and Medicaid directors that effective December 6, 2011, the revised 18 NYCRR 360-7.11 expanded-estate regulation had expired, and that districts must not include assets that pass outside of the probate estate as part of a decedent's estate for recovery purposes.
That guidance has governed ever since. The GIS also said a revised regulation would be promulgated, which is a reason to confirm the current posture rather than assume it is frozen forever, but as of this writing probate-only is the operating rule, and it is written down in a public one-page notice from the state rather than passed between families as folklore.
The practical consequence on Long Island is enormous. A house held by a parent and an adult child as joint tenants with right of survivorship, or a house transferred years ago into an irrevocable trust, does not pass under a will or by intestacy. It never enters the probate estate. Under the current guidance, the county has nothing to file a claim against.
What the county can actually claim, and in what order
When there is a probate estate, the county's claim covers Medicaid correctly paid on the recipient's behalf from age 55 forward. It is not limited to nursing home bills. Community-based long-term care paid through Managed Long Term Care, services delivered through the Assisted Living Program, and related services all count toward what the county spent.
Medicaid is a preferred creditor of a New York estate, and recovery comes out of what remains after funeral and burial expenses. That ordering matters more than families expect, because a prepaid irrevocable funeral arrangement is one of the few expenditures a Medicaid applicant can make without creating a transfer problem, and it sits ahead of the county in line.
Not everything Medicaid paid is recoverable. Since January 1, 2010, Medicaid payments for Medicare cost-sharing made for someone enrolled in a Medicare Savings Program, meaning Part A and Part B premiums, deductibles, coinsurance and copayments, have been exempt from estate recovery. If a parent's only Medicaid was help with Medicare premiums, there is generally nothing to recover.
Counties are also permitted to weigh whether pursuing a claim is cost effective, considering the administrative cost of a court action, the amount paid, and what assets actually exist. A small probate estate consumed by a funeral bill is not a target.
Who stops the clock: the deferrals that protect a surviving family
Recovery must be deferred, not merely reduced, during the lifetime of a surviving spouse. It must also be deferred while there is a surviving child under 21, and during the lifetime of a surviving child of any age who is certified blind or certified disabled.
Two additional deferrals attach specifically to the home. One protects a sibling who holds an equity interest in the house, lived there for at least a year immediately before the recipient was institutionalized, and has lawfully lived there continuously since. The other protects an adult child who lived in the home for at least two years immediately before institutionalization, provided care that may have delayed that institutionalization, and has lived there continuously since.
That second one, often called the caregiver child exception, describes a very familiar Long Island household: an adult child who moved back into the Massapequa or Huntington Station house to keep a parent out of a nursing home, and stayed. It is worth documenting as you go. Physician letters, home care agency notes and a clear record of the dates are far easier to assemble while a parent is alive than three years after a death.
Deferral is not forgiveness. When the surviving spouse dies, when the minor child turns 21, or when the sibling or adult child stops living in the home or the house goes up for sale, the previously barred claim can be pursued, capped at the value of the property that person received or the amount otherwise recoverable, whichever is less.
The undue hardship waiver, and why Long Island home prices matter to it
Separate from deferral, the county must waive recovery in whole or in part where it would cause undue hardship to an heir, survivor or beneficiary. New York's guidance gives two illustrations. The first is an asset that is the beneficiary's sole income-producing asset, such as a family farm or family business with limited income, which is a live scenario on the North Fork in a way it is not in Garden City. The second is real property of modest value that is the beneficiary's primary residence.
Modest value has a formula attached: a value no higher than 50 percent of the average selling price in the county where the home is located, as of the recipient's date of death. Read that against Nassau and Suffolk sale prices and the test becomes demanding in both directions. Half of a county average here is not a small number, but neither is the 1950s cape a family is trying to hold onto, and whether a specific house clears the line is an evidentiary question about that county, that year and that date of death rather than something to guess at from a listing site.
The deadline is the part families miss. The state's own consumer notice on estate recovery, OHIP-0054, tells beneficiaries that a request for consideration of undue hardship must be made within 30 days of notification of the Medicaid estate claim. Thirty days is short in the weeks after a parent's death, when mail is being forwarded and nobody has opened the county envelope yet.
The county is required to notify affected heirs when it initiates a claim and to tell them they may seek a waiver or contest it. Read the notice the day it arrives, write down the date, and call an attorney before the 30 days run rather than after.
Where this plays out here: two Surrogate's Courts, two social services departments
Because recovery in New York is tied to probate, the venue is the Surrogate's Court in the county where your parent lived. Nassau County Surrogate's Court sits at 262 Old Country Road in Mineola and can be reached at (516) 493-3800. Suffolk County Surrogate's Court sits at 320 Center Drive in Riverhead, at (631) 852-1745. There is no Long Island Surrogate's Court; as with nearly everything on this island, the county line decides which door you use.
The claim itself comes from the county Department of Social Services that paid the benefits. Nassau County DSS is reachable at 516-227-8519 and Suffolk County DSS at 631-854-9930. If a claim notice arrives, that is where the underlying accounting lives, and where a request for the payment detail behind the number should go.
One procedural wrinkle is worth knowing. Not every estate goes through a full probate proceeding. New York's voluntary administration process under SCPA Article 13 handles estates of $50,000 or less in personal property through a short affidavit instead. Real property sits outside that process entirely, which on Long Island is usually the whole point: the house is the estate, and how the house is titled decides whether there is a probate proceeding at all.
That is a document question with a clear answer, and it is knowable today rather than after a death. Pull the deed before you need it.
Three things families confuse with estate recovery
The lifetime lien. A Medicaid lien placed on real property while a recipient is alive and permanently institutionalized is a different mechanism from post-death estate recovery, with its own protections for a spouse, minor or disabled child, or qualifying sibling still living in the home. Families hear lien and recovery and merge them into a single threat. Ask which one anyone is actually talking about.
The home equity limit. New York's home equity limit for Medicaid long-term care coverage is $1,130,000 for 2026, from NYSDOH GIS 26 MA/03. That is an eligibility rule applied while your parent is alive and applying, not a cap on what can be recovered later. On the North Shore and out east it is the rule more likely to bite first.
Long-term care partnership policies. New York's Partnership for Long-Term Care policies interact with recovery directly. A qualified policyholder with a Total Asset Protection plan is excluded from estate recovery, and a Dollar-for-Dollar plan protects a set amount of resources. If a parent bought a policy years ago and it is sitting in a drawer, find out which kind it is before assuming it is irrelevant.
None of these three changes what a county may claim against a probate estate. They change whether there is a probate estate, whether your parent qualifies in the first place, and whether recovery is barred outright.
What to do with this, in order
If a parent is applying for long-term care Medicaid now, treat the deed and the account titling as part of the application rather than an afterthought. How assets are held determines what is exposed later, and how the family pays in the first place shapes the size of any eventual claim.
If a parent is already receiving Medicaid, gather documentation for any deferral that might apply, including a caregiver child's dates of residence, a sibling's equity interest, or a disabled child's certification, while the people who can verify it are still available to ask.
If a notice has already arrived, mark the 30-day hardship window on a calendar the same day, request the payment detail from the county DSS that issued it, and have a New York elder law attorney look at both the notice and the deed before you respond.
And if the money is running out and none of this has been addressed, start with the spend-down conversation rather than the recovery one. Recovery is the last chapter. Eligibility is the chapter that decides whether care gets paid for at all.
