No. 3-04-0162
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2005
| BETTY J. HINES, as Executor of | ) | Appeal from the Circuit Court |
| the Estate of Beverly Tutinas, | ) | for the 14th Judicial Circuit, |
| ) | Rock Island County, Illinois | |
| Petitioner-Appellant, | ) | |
| ) | ||
| v. | ) | No. 01-P-243 |
| ) | ||
| THE DEPARTMENT OF PUBLIC | ) | |
| AID, Barry S. Maram, Director, | ) | |
| ) | The Honorable Joseph F. Beatty, | |
| Respondent-Appellee. | ) | Judge Presiding |
JUSTICE McDADE delivered the opinion of the court:
Petitioner, Betty J. Hines, appeals the trial court's order finding that the IllinoisDepartment of Public Aid may recover the value of Medicaid payments from the estate of BeverlyTutinas as a surviving spouse of a Medicaid recipient. For the reasons that follow, we reverse.
BACKGROUND
The pertinent facts are not in dispute. Beverly Tutinas, deceased, was married to JuliusTutinas, also deceased. Beverly and Julius held joint title to a home in Moline, Illinois, and to anautomobile. In July 1994, respondent, the Illinois Department of Public Aid (Department),approved Julius for medical assistance (Medicaid). He began receiving assistance in August 1994. He was 66 years old at that time and he continued to receive assistance until his death in July1997. No probate estate was created upon Julius's death. Beverly died in May 2001. Petitioner,Betty J. Hines, is the independent administrator of Beverly's estate, which consisted only of thehome, which sold for $69,641.89, and the automobile, which sold for $2,000.
In July 2001, the Department filed a claim against Beverly's estate for $61,154.48,representing the total amount of medical assistance it had provided to Julius. (Beverly neverreceived assistance from the Department.) In July 2003, petitioner filed a petition for instructionsregarding the claim pursuant to section 28-5 of the Probate Act of 1975 (Probate Act) (755 ILCS5/28-5 (West 2002)). The petition stated the dispute over the claim was based on whetherMedicaid permits the Department to enforce its claim for reimbursement against the estate of thesurviving spouse of a Medicaid recipient. Following briefing and argument, the circuit courtdetermined that the issues where as follows:
"A. Whether 305 ILCS 5/5-13 and 89 Ill. Adm. Code 102.200 are in conflict withand preempted by 42 U.S.C. 1396p(b) in that, unlike the State statute and theadministrative code provisions, the Federal estate recovery statute does not permitrecovery against the estate of the second to die spouse of the Medicaid recipient.
B. Whether the amendment of 305 ILCS 5/5-13 on January 1, 1997, to limit'estate recovery' to the assets which are part of the Illinois Probate estate of theMedicaid recipient bars the State of Illinois' claim for estate recovery in thisestate."
The circuit court held the Illinois statute and the Illinois Administrative Code provision didnot conflict with 42 U.S.C. 1396p(b) because federal law permits states to include within the"estate" of a deceased Medicaid recipient:
"any other real and personal property and other assets in which the individual hadany legal title or interest at the time of death, (to the extent of such interest),including assets conveyed to a survivor, heir or assign of the deceased individualthrough joint tenancy, tenancy in common, survivorship, life estate, living trust, orother arrangement. (42 U.S.C.