At the end of August, Medicaid issued a new directive regarding eligibility for individuals involved in a same-sex marriage. The directive, referred to as a General Information System or GIS, is based on a Fourth Department Court decision of Martinez v. County of Monroe, in which the Court held that same-sex marriages performed in other jurisdictions will be recognized legally in New York.
Based on this holding, individuals who have been legally married in a jurisdiction that recognizes same-sex unions will receive the same treatment as a married individuals in New York State.
Equal treatment in the context of Medicaid means that individuals in a same-sex marriage will be treated as husband and wife for purposes of Medicaid coverage. This has both positive and negative connotations.
From a positive point of view, if an individual in a same sex union requires nursing home Medicaid, he/she will be able to transfer his/her assets to the spouse without a Medicaid penalty period. Furthermore, the spouse has the option of signing a “spousal refusal” letter if his/her assets are in excess of the spousal allowance.
When a spousal refusal letter is signed, the ill partner will be eligible for Medicaid coverage as long as all other eligibility requirements are satisfied. This is a highly significant development in the context of Medicaid planning. Prior to this case, an individual involved in a same sex marriage would be subjected to a five-year look back period for the transfer of assets to each other if nursing home Medicaid was required. Now, such person can receive immediate coverage once his/her assets are transferred to the other partner. In addition, the couple's home will be protected so long as one of the married partners resides there.
While this change is noteworthy, there are also negative aspects to the GIS. These couples will now be subjected to Medicaid's rules regarding budgeting, estate recovery and liens. In a spousal situation where one spouse is receiving institutional Medicaid coverage, the spouse who remains in the community is entitled to a resource allowance of $74,820 and a monthly income allowance ($2,610 for 2008). Accordingly, in the context of a same-sex marriage, the individual remaining in the community will be subject to the same budget restrictions.
If spousal refusal is invoked, Medicaid will have the right to sue the spouse in the community to recoup the money it laid out due to such party's obligation to support the Medicaid recipient. Finally, once both members of the same-sex marriage are deceased, Medicaid will be able to pursue estate recovery.
As with all things in life, the good must be taken with the bad. It is heartwarming to see that Medicaid is approaching same-sex marriages in a progressive broad-minded fashion. Individuals in same-sex relationships will have to determine for themselves based on their own facts and circumstances, whether, in the context of New York Medicaid planning, a legal marriage is prudent.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, and Brooklyn, NY. Mr. Fatoullah has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also serves on the Executive Committee of the Elder Law Section of the New York State Bar Association. Mr. Fatoullah has been certified as an Elder Law Attorney by the National Elder Law Foundation. Mr. Fatoullah currently chairs the Legal Committee of the Alzheimer's Association, LI Chapter and is a co-founder of Senior Umbrella Network of Queens. This article was written with the assistance of Debby Rosenfeld, Esq., a senior staff attorney at the firm. The firm can be reached by calling 718-261-1700 or 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.
* Certified as an Elder Law Attorney by the National Elder Law Foundation.
