Florida recovers only from the probate estate
This single fact drives most Florida-specific estate planning: Florida is a "probate-only" recovery state. Property that never enters probate — because it passed by beneficiary designation, joint ownership with rights of survivorship, or a properly recorded Lady Bird deed — is generally out of reach of a Medicaid estate-recovery claim.
Florida's constitution reinforces this for the home specifically: the statute states that "no debt under this section shall be enforced against any property that is determined to be exempt from the claims of creditors under the constitution or laws of this state" (§ 409.9101(7)). In practice, if the home was the recipient's homestead and it passes to a surviving spouse or descendants, the probate judge will typically declare it protected homestead, and Medicaid cannot force its sale.
Protection isn't automatic. The home must still
be homestead at death and pass to a protected heir. A will that directs the personal representative to sell the home converts protected homestead into probate cash — which Medicaid can then reach. Real property is never transferred to the agency directly; if it must be sold, it's sold and the proceeds applied to the claim (
§ 409.9101(10)).
When recovery is barred outright
Florida will not enforce the debt at all if the recipient is survived by a spouse, a child under 21, or a child who is blind or permanently and totally disabled, regardless of that child's age (§ 409.9101(6)).
The hardship waiver
Beyond the absolute bars, heirs can request a hardship waiver. Qualifying grounds include an heir who has lived in the home as their primary residence for the 12 months before death and owns no other residence, or a sibling or adult child who provided documented full-time care that delayed the recipient's nursing-home entry and lived in the home at least one year. Florida is explicit that "a hardship does not exist solely because recovery will prevent any heirs from receiving an anticipated inheritance" (§ 409.9101(8)). A Request for Hardship Waiver form is available directly from the Florida Medicaid Estate Recovery Program.
Notice duty and timing
An attorney or personal representative handling the estate of someone who died at age 55 or older must serve notice of the estate's administration within three months after the first publication of the probate notice (Florida Medicaid Estate Recovery Program). Within Florida probate's payment order, administration expenses come first, then funeral and burial expenses up to $6,000, and then the Medicaid claim must be satisfied before lower-priority creditors or heirs receive any non-exempt assets.
Not mutually exclusive. Most families combine two or three funding pillars — this one rarely stands alone.
The
Journey Assessment ranks all ten pillars against your specific situation and
recommends the top three.
