Suing my elderly and incapacitated mother (legal question)

In a good way, of course. She would probably agree to it in order to rectify a costly mistake. At this point, this is largely hypothetical , although it relates to my current situation. And I will note that I have an appointment with a lawyer next week.

My elderly mother is in a nursing home, consuming her life savings at an alarming rate. We are applying for Medicaid benefits. Which you can’t get unless you are destitute. She will be soon. Nursing care consumes middle class egg nests at an alarming rate. Half of all nursing home patients are on Medicaid. There is an exception for the house. But Medicaid is big into asset recovery and frequently takes houses although in some cases they defer it.

I believe that my mom will be able to gift the house to my brother under the caretaker child exception, he seems to be a textbook case. Which is why the below is largely hypothetical.

Back in 2013, ( longer than the Medicaid look-back period ) my mother transferred the deed to the house to me and my brother, with all three of us having survivorship rights. I found the document in a records search. To be honest, I knew I had signed something that would help us avoid probate when she died and I didn’t remember the nature of the document. I knew I had to sign papers when we took out home loans.

In 2015, that house burned down. Our insurance company deemed us to be underinsured. That meant we didn’t have to rebuild while accounting for every penny. Instead we got a check for the policy amount, free and clear. We did have to account for the contents ( furniture and personal possessions) which was handled as a separate claim.

So we took the money and purchased a new house. The insurance checks were made out to my mother. She purchased a new home, deeded in her name. I have no idea if she obtained legal guidance. But I think it was a mistake or misunderstanding because our conversations led me to believe she thought the previous ownership and survivorship arrangements were still in place. But they were linked to a specific property.

IANAL, so maybe I’m missing something about the essential nature of these documents and I’ll confess to not being attentive enough, but I can’t help but thinking that my brother and I have a legitimate claim on the house and that some one — my Mom or the insurer — screwed up somewhere. Either the homeowners policy should have been transferred to our names or the insurer should have done a public records check and made the check out to us. But it was legally our house ( I think) and she got the money for it.

So could I hypothetically sue my mom for the insurance money and put my own lien on the house before Medicaid gets to it? Could she agree to “settle” by handing over the house (the value of the house is considerably less than the insurance payout) Or would Medicaid just laugh?

Or am I missing something essential that makes this a dumb question. I’d actually like to know before I mention it to my lawyer.


my understanding is most such documents for trusts and such are written as something to the extent of “the property and structures at 123 Main street” The fact that its not the same structure or a heavily modified structure would be irrelevant for probate/inheritance purposes.

That’s part of the issue but I know that part, The irregularity that I see is that The property on 123 Main St was owned by me ( and my brother ) yet my mother, who had a “life estate” but no ownership interest, received the $300,000+ homeowners insurance payout when the house was destroyed. THAT is legally what I’d be trying to recoup, even though my objective is to get the house in my name through a negotiated settlement.

And I just checked the docs again. It was a straight up deed transfer, like you get when you buy a house, with a “life estate” provision for my mom. Not a complex trust arrangement.

It’s not so stupid that I wouldn’t talk to the lawyer-but there might be a problem. It seems that your mother ( who owned no part of the house) had the insurance policy and you and your brother (who owned the house) were not just underinsured but uninsured. You generally cannot insure something unless you have an insurable interest - for example, I can’t buy insurance on your house and get paid if it burns down. You might not have a reason to sue your mother- it doesn’t seem like the checks were made out to you and she somehow used the money to buy the new house. It seems like she deeded the house over to you and never informed the insurance company of the change. A lot of insurance policies have a clause requiring you to notify them and another clause that says if you conceal or misrepresent facts you don’t have coverage so the insurance company might be able to sue her- but I’m not sure you can.

The only possible answer here is to talk to a lawyer. For what my opinion is worth, this doesn’t sound promising for you. As curious as I am about what the lawyer says, I would advise against you coming back to update us. Good luck.

IANAL, and the quoted sounds like great advice. The question I had is: was your mother’s ownership interest a "life estate " or was it merely as a tenant of you and your siblings, or were you all co-tenants?

My understanding is that ownership rights vary greatly between the above situations. But really, visiting an attorney with knowledge of elder law and government benefits eligibility, should be your next step.

Is there some reason that your mom can’t just gift the new house to y’all all over again?

Medicaid would consider that an attempt to get out of paying the nursing home bill. The government takes a VERY dim view of such things.

A life estate. I’m seeing the lawyer next week. Again, this is mostly curiosity because I have more straightforward avenues to pursue.