Exceptions to Disqualifying Transfer Provision 510-05-80-25

(Revised 1/1/2026 Release 26.1)

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(N.D.A.C. Section 75-02-02.1-33.1 and 75-02-02.1-33.2)

 

  1. A transfer is not disqualifying to the extent the asset transferred was the individual's home or residence, and it was transferred to:
  1. The individual's spouse;
  2. The individual's son or daughter who is under age twenty-one, or blind, or disabled;
  3. The individual's brother or sister who has an equity interest in the individual's home and who was residing in the individual's home for a period of at least one year immediately before the date the individual began receiving nursing care services; or
  4. The individual's son or daughter (other than a child described in subdivision b) who was residing in the individual's home for a period of at least two years immediately before the date the individual began receiving nursing care services, and who provided care to the individual which permitted the individual to avoid receiving nursing care services.
  1. A transfer is not disqualifying to the extent that the asset transferred was any Medicaid excluded asset other than:
  1. The home or residence;
  2. Property which is not saleable without working an undue hardship;
  3. Excluded home replacement funds;
  4. Excluded payments, excluded interest earned on the payments, and excluded in-kind items received for the repair or replacement of lost, damaged, or stolen exempt or excluded assets;
  5. Life estate interests;
  6. Mineral acres;
  7. Inheritances, during the six months in which they are excluded; or
  8. Annuities.

Note:  This exception to the disqualifying transfer provision does not allow transfers of assets that are protected under the Long Term Care Partnership Program.  If assets protected under the Long Term Care Partnership Program are transferred, the disqualifying transfer provisions in 05-80-10 apply.

  1. A transfer is not disqualifying to the extent the income or assets were transferred:
  1. To the individual's spouse or to another for the sole benefit of the individual's spouse;
  2. From the individual's spouse to another for the sole benefit of the individual's spouse;
  3. To, or to a trust established solely for the benefit of, the individual's child who is blind or disabled; or
  4. To a trust established solely for the benefit of an individual under sixty-five years of age who is disabled.

An institutionalized spouse is allowed to transfer ownership of an excluded IRA to the community spouse without resulting in a Disqualifying Transfer. Once the Medicaid Unit makes application and prior to determination of eligibility, the IRA must be converted to an annuity, annuitized, and monthly income counted, if good cause does not exist. The amount of monthly income that must be counted may affect the client share as well as amount deemed to the community spouse.

NOTE: An Individual Retirement Account (IRA) can only be owned by one person and cannot be jointly owned with a spouse. The owner cannot transfer their IRA to a spouse or another person except under two circumstances:

  1. In a divorce settlement; or
  2. Through an inheritance.

Money can be withdrawn from the IRA which can be given to the spouse, but that involves transferring cash rather than the IRA itself.

  1. A transfer is not disqualifying to the extent the individual makes a satisfactory showing that:
  1. The individual intended to dispose of the income or assets, either at fair market value or other valuable consideration, and the individual had an objectively reasonable belief that fair market value or its equivalent was received;
  2. The income or assets were transferred exclusively for a purpose other than to qualify for Medicaid;
  3. The assets transferred by or on behalf of the individual, or individual's spouse, when added to the value of the individual's other countable assets would not exceed the asset limits of $3,000 for one person or $6,000 for two persons (including spousal impoverishment cases); or
  4. All income or assets transferred for less than market value have been returned to the individual.  If all of the income or assets of a particular transfer are returned at the time of application, and no periods of eligibility have been established for that transfer after the date of the original transfer, process the application as if the original transfer never occurred. If all of the income and assets of a particular transfer are returned after Medicaid eligibility has already been established (for a period after the date of the original transfer), the period of ineligibility for that transfer ends as of the date the income or assets are returned, but only if the returned assets do not cause the community spouse to have total countable assets in excess of the community spouse countable asset allowance allowed at the time the institutionalized or HCBS spouse became eligible. In establishing whether all of the income or assets have been returned, the income or assets transferred, or their equivalent value, must be returned.

A partial return of the income or assets transferred does not end or shorten the period of the ineligibility. The returned income or assets may cause ineligibility for Medicaid, and in any case, can be used to cover the individual’s medical needs for the remainder of the penalty period.

  1. A transfer is not disqualifying to the extent that the asset was used to acquire an annuity if the annuity meets the requirements in annuity sections 05-70-45-20 or  05-70-45-30.
  2. A transfer to meet the burial needs of an individual is not disqualifying to the extent the asset transferred meets the burial exclusion and to the extent the asset is considered available to the individual.
  3. Transfer of money to a person who is now deceased will not be counted in the disqualifying transfer amount (DQT).