How to Deal with Non-Compliant Annuities During the Medicaid Planning Process

Understanding the Only Medicaid Approved Annuity Called a “SPIA”

Annuities have become popular retirement vehicles to create income for life due to market volatility. There are two types of annuities – fixed and variable.

Most commercial/brokerage annuities are non-compliant for Medicaid purposes, which means they will be treated as a countable asset.  If the annuity is non-compliant, it will be rejected by Medicaid. This investment will then prevent an applicant from becoming eligible or will create a penalty period during which time an applicant will be ineligible for benefits.

For an annuity to be Medicaid compliant it must be a single premium, immediate annuity that generates an income stream.

I’ve noticed over the years that many older individuals who come in for asset protection planning have annuities but it is very rare to find one that is Medicaid compliant, as Medicaid is not usually discussed when one is purchasing an annuity.

A Medicaid compliant annuity must meet the requirements of the Deficit Reduction Act of 2005 together with the following five key requirements:

  1. Be Irrevocable – No stream of payment or beneficiary changes can be made (non-compliant annuities allow changes).
  2. Be Non-Assignable – Language in annuity prohibits transfer to 3rd party. Only original annuitant can benefit.
  3. Be Actuarially Sound – Must be equal to or less than annuitant’s lifetime based upon the Medicaid life expectancy table(s). Annuitant must receive all monies back during his/her lifetime period.  Non-compliant annuities offer different periods of time or lifetime payments.  A lifetime rider will not pass Medicaid test.
  4. Provide Equal Payments – Payments must be for the same amount each and every month for entire term of the annuity. If the payment amount varies, the annuity will not pass the Medicaid test.
  5. Name a Correct Beneficiary – The state of NJ must be named as primary beneficiary up to the sum of money it has paid out in benefits prior to the applicant passing in death or having newly received assets while alive. There are only two exceptions. The exceptions are to name a minor disabled child or a community spouse as primary beneficiary.

What Happens if You Own a Medicaid Non-Compliant Annuity?

If your annuity is non-compliant, you have three options: surrender, exchange or sell it.

For tax purposes, there are two types of annuities – tax deferred and immediate.

Tax deferred annuities sit and accumulate unpaid and have dividends or interest a guaranteed rate of return.  The annuitant has access to the cash value and can make withdrawals (there may be penalties for doing so depending on terms of annuity).  If surrendered prior to maturity, the income and taxes must be paid and funds received are treated as an asset.  You can use a 1035 tax exchange and transition this annuity to a Medicaid approved annuity. Here is an important point. You can spread the income tax due over a period of years to avoid a large tax hit.  A 1035 tax exchange does not negate, however, any surrender charges.

Immediate annuities provide a stream of income over a specified term using a block of invested money.  If irrevocable and non-assignable, it is considered an investment to Medicaid.  If nothing can be done about this asset, meaning it cannot be assigned or sold, a hardship argument to Medicaid should be made since you can’t sell it; you can’t get or do anything for it.  Medicaid will likely still treat it as a resource and assess either a penalty period or deny the Medicaid application for being over the $2000 resource limit. See my discussion about Medicaid resources and financial eligibility for Medicaid (click here).

However, most immediate annuities are revocable and assignable, meaning you can sell them.  There is a secondary market for these immediate annuities. Once purchased, these annuities may or may not be surrendered and the purchaser will only have access to its stream of income (monthly or quarterly payment) but not block of cash.  Many families will sell their annuity to other family members once value is established but it isn’t done very often.

When valuing the annuity for sale, it is assumed that today’s dollars are worth more than future dollars. A purchaser will value the annuity based on its present value since payments would be in today’s dollars.  T-value software is what most secondary companies use to value annuities.  The present value is discounted because payments are made over time and in future dollars. The higher the discount rate, the less valuable to annuitize.

When valuing, you should look for fair market value by getting 2-3 offers to show Medicaid that it is being sold at fair market value in order to avoid divestment penalty.

At Hanlon Niemann & Wright, we can assist our clients with the sale of their annuity as we work with companies that write immediate annuities.

For a low cost consultation on Medicaid eligibility and the Medicaid application process, contact Fredrick P. Niemann toll-free at (855) 376-5291 or email him at

Fredrick P. Niemann Esq.





Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright,  a New Jersey Applying for Medicaid Attorney

Medicaid Attorneys serving these New Jersey Counties:

Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County, Bergen County, Morris County,
Burlington County, Union County, Somerset County, Hudson County, Passaic County New Jersey Medicaid Eligibility