Wis. Stat. § 49.849 — WI Code / Chapter 49 / Section 49.849
Section 49.849
Status: in_force

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 if any of the following applies:

a. The recipient’s surviving spouse or child who is under age 21 or disabled sells the property for fair market value, as described in sub. (5c) (d) , during the spouse’s or child’s lifetime.

b. The recipient’s surviving spouse or child who is under age 21 or disabled transfers the property for less than fair market value, as described in sub. (5c) (d) , during the spouse’s or child’s lifetime, the transferee sells the property during the spouse’s or child’s lifetime and places proceeds equal to the lesser of the department’s lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient’s spouse or disabled child or when the recipient’s child who is not disabled reaches age 21.

c. The surviving owner or transferee of the property, who is not the recipient’s surviving spouse or child who is under age 21 or disabled, sells the property during the lifetime of the recipient’s surviving spouse or child who is under age 21 or disabled and places proceeds equal to the lesser of the department’s lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient’s spouse or disabled child or when the recipient’s child who is not disabled reaches age 21.

(4m) Allowable costs of sale of real property.

(a) Subject to par. (b) , if any property of a decedent that is real property has been sold after the death of the decedent, only the following reasonable expenses, if any, incurred in preserving or disposing of the real property may be deducted from the sale proceeds that the department may recover:

1. Closing costs of sale, including reasonable attorney fees of the seller, the cost of title insurance, and recording costs.

2. Property insurance premiums.

3. Property taxes due.

4. Utility costs necessary to preserve the property.

5. Expenses incurred in providing necessary maintenance or making necessary repairs, without which the salability of the property would be substantially impaired.

(b) Any expense under par. (a) may be deducted from the sale proceeds only if it is documented and approved by the department and it was not incurred while any other individual was living on the property.

(5) Other valid claims. If a person has a valid claim against property of the decedent that would have a higher priority under s. 859.25 (1) if the property were subject to administration than the department 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. (3) 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.

(5c) Value of recipient’s interest. For purposes of determining the value of the recipient’s interest in property of the decedent, all of the following apply:

(a) If the recipient held title to real property jointly with one or more persons other than his or her spouse, the recipient’s interest in the real property is equal to the fractional interest that the recipient would have had in the property if the property had been held with the other owner or owners as tenants in common.

(b) If the recipient held title to personal property jointly with one or more persons other than his or her spouse, the recipient’s interest in the personal property is equal to either of the following:

1. The percentage interest that was attributed to the recipient when his or her eligibility for public assistance was determined.

2. If the percentage interest was not determined as provided in subd. 1. , the fractional interest that the recipient would have had in the property if the property had been held with the other co-owner or co-owners as tenants in common.

(c) If the recipient held a life estate in real property, the recipient’s interest is equal to the recipient’s percentage of ownership in the property based on the recipient’s age on the date of death and calculated using the fair market value of the property and life estate-remainderman tables used by the department to value life estates for purposes of determining eligibility for Medical Assistance.

(d) A property’s fair market value is the price that a willing buyer would pay a willing seller for the purchase of the property. The burden of proof for establishing a property’s fair market value is on the surviving owners or beneficiaries, or their representatives. Fair market value must be established through a credible methodology, which may include an appraisal performed by a licensed appraiser.

(5m) Fair hearing. A person who has possession of any property of the decedent, or who receives an affidavit from the department under sub. (3) (c) for transmittal of any property of the decedent, is entitled to and may, within 45 days after the affidavit was sent, request a departmental fair hearing on the value of the property and the extent of the recipient’s interest in the property, if the property is not being transferred under s. 867.03 or through formal or informal administration of the decedent’s estate.

(5r) Action or order to enforce recovery.

(a) If, after receipt of an affidavit under sub. (3) , a person who possesses property of a decedent does not transmit the property to the department or timely request a hearing, the department may bring an action to enforce its right to collect amounts specified in sub. (2) (a) from the property or may issue an order to compel transmittal of the property. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a class 3 proceeding, as defined in s. 227.01 (3) (c) , under ch. 227 by filing a request for appeal, within 30 days after the date of the order, with the division of hearings and appeals created under s. 15.103 (1) . The date on which the division of hearings and appeals receives the request for appeal shall be the date of service. The only issue at the hearing shall be whether the person has transmitted the property to the department. The decision of the division of hearings and appeals shall be the final decision of the department.

(b) If any person named in an order to compel transmittal of property issued under par. (a) fails to transmit the property under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a certified copy of the order to the circuit court for any county. The sworn statement of the secretary shall be evidence of the department’s right to collect amounts specified in sub. (2) (a) from the property and of the person’s failure to transmit the property to the department. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

(c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.

(6) Payments from recovered amounts. From the appropriation under s. 20.435 (4) (im) , with respect to funds collected by the department under sub. (2) related to medical assistance paid on behalf of the decedent or the decedent’s spouse, the department shall pay claims under sub. (5) , shall pay to the federal government from the amount recovered under this section and not paid out as claims under sub. (5) 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 .

(7) Rules for hardship waiver. The department shall promulgate rules establishing standards to determine whether the application of this section would work an undue hardship in individual cases. If the department 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. This subsection does not apply with respect to the recovery of aid under s. 49.785 .

History: 2013 a. 20 ss. 1222 , 2305 , 2307 , 2308 , 2310 to 2312 , 2314 to 2317 ; 2013 a. 92 ; 2013 a. 151 s. 28 ; 2015 a. 55 ; 2019 a. 9 .