With the recent Supreme Court ruling that allowed gay marriages, along with the new healthcare laws that are soon to be in full effect, there’s a lot to take in when it comes to asset transfer rules, benefits, estate planning, and of course, Medicaid.
First, let’s take a look at the Supreme Court’s recent ruling on same sex marriages.
The Social Security Administration (SSA) and the Veteran’s Administration (VA), in recent weeks, have begun issuing guidance for all things related to the treatment of same-sex marriages. The SSA continues to update its regulations and has already begun approving benefits to many same sex couples.
Same Sex Marriages and Military Veterans
Also in recent days, President Obama made an announcement that spouses of same sex military veterans may also collect veteran’s spousal benefits. This clears the way for many to be able to take advantage of the benefits afforded to their heterosexual counterparts. These announcements, all courtesy of United States v. Windsor, brings everything full circle from this perspective.
Meanwhile, SSA has made changes to its own Policy Operations Manual System. This is what the various field offices use when determining benefits. Those benefits that, until now, were out of reach for many, further cements the Supreme Court’s ruling that these marriages were lawfully created.
This doesn’t mean these changes haven’t been without a bit of confusion and uncertainty. Claims are still being held by Social Security offices for some who were legally married, but who lived in states where their marriages weren’t recognized. For now, those claims are in a state of suspension.
The Obama administration also says there would be no further enforcement of language that defines a spouse as one of the opposite sex. The VA immediately began providing benefits to spouses in same sex marriages, determined by the state of discharge for the veteran.
As we know, Medicaid institutes a five year look back for new applicants. These are designed to ensure those applying for Medicaid haven’t attempted to bypass the laws by giving away assets long enough to qualify for benefits, only to reclaim them after the process is complete.
As far as Medicaid is concerned, the Department of Health and Human Services announced it too would allow states to extend the long term care protections to those in same sex marriages and partnerships. The requirements are the same as those in traditional marriages:
A nursing home resident must spend down to $2,000 – depending on which state the resident resides.
The spouse not in the nursing home, referred to as a “community spouse” is entitled to keep $110,000, again, depending on one’s home state. Further, if that spouse has less than this amount, the resident is allowed to move his assets to the community spouse, provided it comes in at less than $110,000.
If the community spouse has low income, then some or all of the income may be retained with no repercussions. Note, however, the protections extend only to those in legal marriages.
For now, HHS is contacting each state of their abilities to provide Medicaid to same sex couples.
As always, for those couples not married, they’re not under the asset limitations. The partner not in the nursing home will keep all of his or her assets with no fears of jeopardizing a partner’s medical treatment.
Have questions on all of these new financial planning and health care directives? An estate planning lawyer or elder care lawyer can provide guidance.