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 Dear
Attorney Flynn:
My partner of 24 years and
I wed shortly after same-sex marriage was legalized in
Massachusetts. We have provided for one another in our Wills
and have completed beneficiary designation forms for our
pensions and insurance policies naming one another as the
beneficiaries. All of our other assets, including our home,
are owned jointly. As we are both nearing retirement (ages
63 and 64), we would like to update our estate planning
documents and make sure we have taken any steps necessary to
ensure that our assets will be protected if one of us
requires nursing home care in the future. Are there any
specific precautions we must consider as a same sex couple?
Do we need to consult an attorney who specializes in this
area of law? Thank you for any guidance.
Sincerely, Jacqui and Joyce
Dear Jacqui and Joyce:
Congratulations on the legalization of your long-term
relationship! Your question is very timely. I have met with
several same-sex couples over the past few months, and they
all believed that they were fully protected due to the
legality of their marriages. In Goodridge v. Department
of Public Health (440 Mass. 309) (2003), the Court redefined
its long-held definition of marriage to “the voluntary union
of two persons as spouses, to the exclusion of all others.”
After this landmark decision, it is only natural for
same-sex married couples to presume that they will be
afforded the same spousal protections as their heterosexual
counterparts, but the sad reality is that they will not.
For example, if one member of a heterosexual marriage needs
nursing home care, the MassHealth regulations provide a
number of protections to ensure that the community spouse
will not be impoverished. For example, there is no penalty
for transfers between spouses, the marital home is
non-countable and the community spouse may retain assets up
to $104,400. If the community spouse’s income is low, he or
she may be entitled to keep a portion of the institutional
spouse’s income each month in order to help cover the income
shortfall. In addition, excess assets (above the $104,400
limit) can be transferred to the spouse without penalty and
converted into an income stream for the benefit of the
community spouse by purchasing a MassHealth compliant
annuity. A same-sex spouse will not be afforded any of these
spousal protections, however, and the individual rules will
apply to the application.
While same-sex marriages are now legal in Massachusetts,
they are not recognized at the federal level. And therein
lies the problem - - MassHealth is funded through a
combination of federal and state funds. The federal Defense
of Marriage Act (DOMA) defines marriage as a legal union
between one man and one woman for issues involving federal
laws, and also provides that states do not have to recognize
a same-sex marriage. The Division of Medical Assistance,
therefore, is relying on the federal definition of marriage
and denying same-sex married couples the same protections
that their heterosexual counterparts enjoy.
There is litigation pending in many states to correct this
and other discriminatory practices, but in the meantime, it
is imperative for same-sex couples to do advance planning.
(It is advisable for all couples to do advance planning, but
it is particularly important for same-sex couples in light
of the practices that exist as a result of DOMA.) It is also
important to get proper estate planning documents in place
that will protect the rights and status of the same-sex
partner in times of crisis.
An elder law attorney will be able to advise you regarding
your estate planning documents and the options you might
consider for asset preservation and other long-term care
issues. Ask specific questions to be sure he or she is an
elder law attorney by practice and not in name only. Be sure
the attorney understands the interplay between the
MassHealth regulations and DOMA, in order to properly advise
you on your long-term care planning options. Good luck.
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