Asset considerations

Except as otherwise provided in this chapter, this section applies to all aged, blind, and disabled applicants and recipients of Medicaid. 1. All actually available assets must be considered in establishing eligibility for Medicaid. Assets are actually available when at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the asset available, or to cause the asset to be made available. This subsection does not supersede other provisions of this chapter which describe or require specific treatment of assets, or which describe specific circumstances which require a particular treatment of assets. 2. The financial responsibility of any individual for any applicant or recipient of Medicaid is limited to the responsibility of spouse for spouse and parents for a disabled child under age eighteen. Such responsibility is imposed upon applicants or recipients as a condition of eligibility for Medicaid. Except as otherwise provided in this section, the assets of the spouse and parents are considered available to an applicant or recipient, even if those assets are not actually contributed. For purposes of this subsection, biological and adoptive parents, but not stepparents, are treated as parents. 3. It is presumed that all spousal assets are actually available. In order to rebut this presumption, the applicant or recipient must demonstrate that the spousal assets are unavailable despite reasonable and diligent efforts to access such assets. No applicant or recipient who has a statutory or common-law cause of action for support out of the assets of a spouse, but who has failed to diligently pursue that cause of action, may rebut the presumption. Any applicant or recipient who documents any of the following circumstances will have rebutted the presumption without further proof: a. A court order, entered following a contested case, determines the amounts of support that a spouse must pay to the applicant or recipient; b. The spouse from whom support could ordinarily be sought, and the property of such spouse, is outside the jurisdiction of the courts of the United States or any of the United States; c. The applicant or recipient has been subject to marital separation, with or without court order, and the parties have not separated for the purpose of securing Medicaid benefits; or d. In cases where section 75-02-02.1-24 applies, the assets are those properly treated as belonging to the community spouse. 4. All parental assets are considered actually available to a disabled child under age eighteen unless the child is living: a. Independently; or b. With a parent who is separated from the child's other parent, with or without court order, if the parents did not separate for the purpose of securing Medicaid benefits, in which case only the assets of the parent with whom the child is living are considered available. 5. When considering the availability of assets from an estate, assets received from the estate of a spouse, or a parent who was providing support, are available as of the date of the death of the person who was providing such support. Assets received from the estate of any other person are available at the earlier of: a. The day on which the assets are received from the estate; or b. Six months after the person's death.