Does the high-profile U.S. Supreme Court opinion in Windsor v. US related to the Defense of Marriage Act (DOMA) affect elder law issues?
It might.
As discussed in a new release from a long-term care insurance think tank, the Supreme Court’s ruling will have an effect on same sex couples and Medicaid benefits. As noted in detail elsewhere, because of the DOMA decision, same sex couples lawfully married in their own state (like New York) are now treated as married by the federal government.
As explained by the long-term care advocacy group, GOT LTC, before the DOMA decision married same sex couples were still treated as unmarried when applying for Medicaid benefits–even in states like New York which allows same sex couples to marry.
Marriage status is considered by the Medicaid program in different ways. Perhaps most notably for elder law and estate planning purposes, a federal law exists known as the “Spousal Impoverishment Act.” Among other things this law allows a spouse to keep some assets instead of having to entirely “spend down” that property in order to qualify for Medicaid benefits to pay for nursing home stays or other long-term care needs.
An evaluation of assets occurs when applying for Medicaid. For married couples all joint assets are considered. However, the healthy spouse is able to keep a significant amount of assets, with the remaining assets spent down (in New York they must be spent down to $4,150). Spouses are often able to keep nearly $75,000 in assets–not a minimal sum. In addition, the healthy spouse is given the chance the keep over $2,800 in monthly income. In other words, with passage of DOMA, same sex couples in New York may be afforded much better options when applying for Medicaid and seeking support for long-term care needs. No longer will their unequal federal treatment act as a disadvantage, placing them in difficult circumstances for no reason other than their sexual orientation.
Of course, there are other more sophisticated tools that can also be used to protect even more assets in the event that long-term care is needed. Attorneys can draft a Medicaid Asset Protection Trust which is a separate entity that holds property and can protect all or part of it from the spending down requirement.
If you are in New York, please contact our team of elder law professionals to see how we can help. With offices throughout the state, we have decades of experience helping all families with these issues.