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(Revised 3/03 ML #2830)
(NDAC 75-02-01.2-21)
Assets must be available to the TANF household for current use. To be considered an asset, an interest in property (real or personal) must be owned by the individual and available for disposition. In general, an individual who has legal title to property has the right to control and dispose of it. If property cannot be disposed of, it is not an available asset.
All assets owned individually or jointly are presumed available to the household. Assets owned jointly by members of separate households, where there is a legal obligation to support, are also presumed available to the TANF household. The equity value of jointly owned real property shall be equally divided among all property owners. However, if the applicant or recipient can show that the assets are in fact not available, those assets may be exempt. If the applicant or recipient can demonstrate that it has access to only a portion of a given asset, only that portion will be considered. An asset shall be considered not available if it cannot be practically subdivided and/or the household's access to the asset is dependent on the agreement and cooperation of a joint owner who refuses and cannot reasonably be forced to comply.
A stepparent's assets, whether owned exclusively by the stepparent or jointly with the natural parent, are considered available in their entirety to the spouse. Because the Deficit Reduction Act of 1984 requires that the TANF household include the natural parent, if technically eligible, the equity value of those assets must fall within program asset limitations or the entire unit is ineligible. If the natural parent is not in the household but his or her children remain in the household with the step-parent, the assets are not considered available to the children.
An asset may be temporarily unavailable (excluded) while the family is taking reasonable measures to overcome a legal impediment. Examples of a legal impediment are a divorce proceeding that will eventually result in the distribution individually of jointly owned property and the refusal of other owner(s) to agree to the sale of jointly held assets. A jointly owned vehicle that is taken by a deserting parent may not be a "currently available" asset but may later become available when the legal impediment is overcome. On rare occasions, the process of liquidating an asset, even though technically "available" to the family, would be unreasonable to pursue, particularly if costly litigation is required. Such assets, on a carefully evaluated case-by-case basis, can be disregarded.
The question of availability is particularly critical to individuals being served by shelters for abused women and children. Assets, regardless of ownership rights, may have to be at least temporarily considered inaccessible until such time as the legal and social ramifications can be resolved. Staff are urged not to apply the "availability" concept so stringently as to risk worsening an already tense situation.
A checking or savings account is sometimes opened jointly in the names of a non-household member or non-household member and the applicant or recipient of TANF. Such accounts are established for the convenience of the parties involved. However, the TANF applicant or recipient may not have contributed to the account and may or may not have knowledge of its existence.
Regardless of the source of the funds, whenever the applicant or recipient is a joint account holder and can legally withdraw funds from that account, he or she is presumed to have unrestricted access to the funds. As such, he or she is deemed to be the sole owner of those funds. If, however, it is clearly established that despite having access to the account, the household has neither contributed to nor withdrawn funds from the account, the applicant or recipient should be given the opportunity to have his or her name removed from the account, or by other action, preclude all access to the funds. If the household is in the process of applying for TANF, such action must be taken before the initial benefit is authorized. If the household is already receiving TANF, the action must be completed within 30 days of notification by the county social service office.
As in all instances in which there is a question of ownership, the household should be given the opportunity to present evidence in rebuttal of the presumption that a joint account is an available asset. A successful rebuttal will result in a finding that the funds in the joint account are in fact not owned by the TANF household. For example, when the funds are clearly available to the TANF household only in the event of the co-owner's death, access is restricted and the funds are therefore not an asset. The funds are likewise not an asset to the TANF household if withdrawals from the account are possible only with the surrendering of the passbook, which is not accessible to the applicant or recipient, or with dual signatures and the co-owner will not sign.
