49.682 Recovery from estates; disease aids and funeral expenses.

(1) In this section:

(a) “Client" means a person who receives or received aid under s. 49.68, 49.683, or 49.685 or a person on whose behalf funeral, burial, or cemetery expenses aid was provided under s. 49.785.

(am) “Decedent" means a deceased client or a deceased nonclient surviving spouse, whichever is applicable.

(b) “Disabled" has the meaning given in s. 49.468 (1) (a) 1.

(c) “Home" means property in which a person has an ownership interest consisting of the person's dwelling and the land used and operated in connection with the dwelling.

(d) “Nonclient surviving spouse" means any of the following:

1. A person who was married to a client when the client was receiving or received services or aid for which the cost may be recovered under sub. (2) (a) and who survived the client.

2. A person who was married to a client on whose behalf funeral, burial, or cemetery expenses aid was provided under s. 49.785, who was married to the client at the client's death or when the client was receiving or received any of the benefits described in s. 49.785 (1c) that made the client an eligible recipient under s. 49.785, or at both times, and who survived the client.

(e) “Property of a decedent" means all real and personal property to which the client held any legal title or in which the client had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.

(2)

(a) Except as provided in par. (d), the department shall file a claim against the estate of a client, and against the estate of a nonclient surviving spouse, for the amount of aid under s. 49.68, 49.683, or 49.685 paid to or on behalf of the client.

(am) The department shall file a claim against the estate of a client, and against the estate of a nonclient surviving spouse, for the amount of aid under s. 49.785 paid to or on behalf of the client.

(b) The affidavit of a person designated by the secretary to administer this subsection is evidence of the amount of the claim.

(bm)

1. Property that is subject to the department's claim under par. (a) or (am) in the estate of a client or in the estate of a nonclient surviving spouse is all property of a decedent that is included in the estate.

2. There is a presumption, consistent with s. 766.31, which may be rebutted, that all property in the estate of the nonclient surviving spouse was marital property held with the client and that 100 percent of the property in the estate of the nonclient surviving spouse is subject to the department's claim under par. (a) or (am).

(c) The court shall reduce the amount of a claim under par. (a) or (am) by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent's heirs or the beneficiaries of the decedent's will to retain the following personal property:

1. The decedent's wearing apparel and jewelry held for personal use.

2. Household furniture, furnishings and appliances.

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

(d) A claim under par. (a) is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.

(e)

1. If the department's claim is not allowable because of par. (d) and the estate includes an interest in real property, including a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the real property subject to a lien in favor of the department for the amount described in par. (a). The personal representative or petitioner for summary settlement or summary assignment of the estate shall record the final judgment as provided in s. 863.29, 867.01 (3) (h), or 867.02 (2) (h).

2. If the department's claim is not allowable because of par. (d), the estate includes an interest in real property, including a home, and the personal representative closes the estate by sworn statement under s. 865.16, the personal representative shall stipulate in the statement that the real property is assigned subject to a lien in favor of the department for the amount described in par. (a). The personal representative shall record the statement in the same manner as described in s. 863.29, as if the statement were a final judgment.

(f) The department may not enforce a lien under par. (e) as long as any of the following survive the decedent:

1. A spouse.

2. A child who is under age 21 or disabled.

(fm) All of the following apply to a lien under par. (e) that the department may not enforce because of par. (f):

1. If the decedent's surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.

2. The department shall release the lien in the circumstances described in s. 49.849 (4) (c) 2.

(g) The department may enforce a lien under par. (e) by foreclosure in the same manner as a mortgage on real property.

(3) The department shall administer the program under this section and may contract with an entity to administer all or a portion of the program, including gathering and providing the department with information needed to recover payment of aid provided under s. 49.68, 49.683, 49.685, or 49.785. All funds received under this subsection, net of any amount claimed under s. 49.849 (5), shall be remitted for deposit in the general fund.

(4)

(a) The department may recover amounts under this section for the provision of aid provided under s. 49.68, 49.683, or 49.685 paid on and after September 1, 1995, and for the provision of aid provided under s. 49.785 paid on or after July 14, 2015.

(b) The department may file a claim under sub. (2) (a) only with respect to a client who dies after September 1, 1995. The department may file a claim under sub. (2) (am) only with respect to a client who dies after July 14, 2015.

(5) The department shall promulgate rules establishing standards for determining whether the application of this section with respect to a claim under sub. (2) (a) would work an undue hardship in individual cases. If the department determines that the application of this section with respect to a claim under sub. (2) (a) would work an undue hardship in a particular case, the department shall waive application of this section in that case.

(6) The department may contract with or employ an attorney to probate estates to recover under this section the costs of care.

History: 1995 a. 27 ss. 3044b to 3044j; Stats. 1995 s. 49.682; 1995 a. 225 ss. 127, 128; 1999 a. 9; 2013 a. 20, 92; 2015 a. 55.