"Medicaid, Elective Shares, and the Ghosts of Tenures Past"

Prof. Julia Belian has published "Medicaid, Elective Shares, and the Ghosts of Tenures Past," in 38 Creighton L. Rev. 1111-1152 (2005) (full text here).  Here is the abstract of her article:

Legislators and administrators understandably struggle to ensure that Medicaid benefits are paid only to those who meet the criteria for financial need. Thus, Medicaid benefits will be denied to those who have "available" any "resources" above a certain small reserve. The definition of "available resources" and the application of that definition, however, have finally expanded so far that certain traditional property law concepts seem to disappear. Court opinions not only routinely uphold these regulations but go on to excoriate such estate planning techniques in harshest terms, even in cases where Medicaid qualification clearly was not the goal. Meanwhile, many citizens who engage in overt Medicaid planning are the same citizens who would never lie on their tax returns, hide assets from their spouses, or make false statements in order to qualify for housing or food assistance. This article explores these phenomena in light of the common law's evolving conceptions of "property", particularly as these are reflected in the history of the elective share and its ancestor, dower. The pressures created by unimagined high costs of such care may have called forth something very ancient - the sense that "property" may not be a thing at all, and that "property rights" may not be natural rights that we possess as individuals in some pre-social context, but that both point instead to a complex system of mutual and reciprocal obligations that develops as the State and its citizens struggle to allocate scarce resources among them.

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