Medicaid and Same Sex Couples

Since I wrote about the issue of same sex partnerships and Medicaid 4 years ago in this blog (February 1, 2010), much has happened in the area of same sex marriage.  Last fall, the United States Supreme Court struck down a 1996 federal law, the Defense of Marriage Act (DOMA) which defined marriage as a legal union between a man and a woman.

At the same time, the New Jersey Supreme Court last fall issued its own decision legalizing same sex marriages in the state.  This decision obviously has wide ranging ramifications, including in the area of Medicaid.  That’s because there are certain protections for a healthy spouse when the “institutional spouse” applies for Medicaid, that don’t exist for a non-married couple.

Now that same sex marriage is legal in New Jersey, the healthy spouse can take advantage of the Community Spouse Resource Allowance rules that permit the healthy spouse to keep some of the couple’s assets.  In a single applicant case, all assets must be spent down to $2000.

Until this recent New Jersey decision, however, the State did recognize civil unions of same sex partners.  The civil union law gave same sex couples some but not all of the benefits of marriage.  This was especially true since the federal government still held to DOMA until last fall.

So, how does this all affect New Jersey Medicaid?  Well, it should be clear that a same sex couple that marries must be treated as such for Medicaid purposes.  But, what about civil unions?  A civil union does not automatically convert to a marriage.  Where does that leave civil union couples as far as Medicaid is concerned?

Word is that New Jersey has issued an alert that it will treat Medicaid applicants in a civil union relationship as single.  That runs counter to what most legal experts say should be the result of the recent court cases.  But, it’s not surprising, since New Jersey often marches to the beat of its own drum.

And if that does turn out to be the State’s response, you can be sure that leading elder law attorneys will challenge it.  I should note, however, that not every case will turn out better if civil union applicants are treated as married.  For example, if the healthy spouse has the majority of the assets, then treating the institutional spouse as single would not require the spend down of any of the healthy spouse’s assets before Medicaid eligibility.

Granted, in most cases it will turn out to be more advantageous to be married, but a minority of same sex Medicaid applicants may be better off being treated as single.  More legal battles appear to be in the future so stay tuned.