By Patrice A. Putman, Maine elder law attorney
On June 26, 2013, the US Supreme Court overturned essential parts of the Defense of Marriage Act, a decision that has a major impact on many of my friends and clients. Until then, the federal Defense of Marriage Act “DOMA” did not allow the recognition of same sex marriage. This meant that a married same sex couple who had lived together for 20 or even 60 years was not able to take advantage of the hundreds of federal benefits that the government gives to married heterosexual couples. Many people realize that same sex couples have not been able to take advantage of the tax benefits associated with filing joint federal income tax returns or Social Security benefits. Something that people are less aware of is the inequity in how long-term care rules have applied to these couples. Now, in Maine, a state where same sex marriage is recognized, these inequities can begin to be addressed.
When a family receives a diagnosis of dementia, they not only need to live with frightening health consequences, they also need to deal with a myriad of financial consequences. Where health insurance and Medicare pay for the diagnosis and treatment of most illnesses, they do not pay for long-term care costs when a person needs to move into an assisted living or nursing home. Only long-term care insurance and Medicaid (called MaineCare in Maine) pay for long-term care. Long-term care generally costs $70,000 a year or more. MaineCare will begin contributing to long-term care costs when a person has less than $10,000 in assets.
When a married person moves into an assisted living facility, MaineCare allows the couple to transfer their assets to the spouse who still lives at home. This means that while the spouse who moves into the assisted living facility can only have $10,000, the rest of the couple’s assets can be kept and used by the spouse at home. When a married person moves into a nursing home, MaineCare allows the spouse living at home to own a home, a car, personal property, and have other assets totaling $115,920. Unmarried couples do not have these options. Only the $10,000 rule applies to the unmarried person.
Now that the Supreme Court has declared significant parts of DOMA to be unconstitutional, the federal government must begin providing same sex spouses the same ability to transfer and protect their hard-earned assets that other married couples have always had. Now, when dementia hits a married gay or lesbian couple, they will have the same heartbreak and the same financial concerns that other married couples have, not 100 times more – at least if they are lucky enough to live in a state like Maine where same sex marriages are allowed and recognized.
The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.