Among the many inequities elderly LGBT couples face under the Defense of Marriage Act (DOMA), Medicaid’s can be the most disastrous (PDF). When a spouse from an opposite-sex couple applies for institutional care, Medicaid pools the couple’s assets and allows the healthy spouse to retain most of them (up to about $110,000). However, individuals in same-sex couples must apply as “single,” and the healthy spouse is not entitled to any assets or property in their partners’ names. As a result, the healthy partner can be left homeless and impoverished. (Such a situation took place last April when Sonoma County, California separated an elderly gay couple and sold off their possessions.)
Today, though, the Obama administration issued new policy guidelines informing states that they can offer their own protections to prevent this happening. While the protections are not required, the guidelines open the door for states — particularly those who recognize same-sex unions — to shield couples from losing their homes when one of the partners needs to utilize Medicaid services:
The Federal beneficiary protections listed above represent the minimum level of protection, in other words, the “floor” for protection from imposition of liens, that must be implemented by the State. States have considerable flexibility to determine the “ceiling” for such protection and to develop their own rules regarding when they will impose/pursue liens, as long as the Federal beneficiary protections noted above are fully implemented. A State can have a policy or rule not to pursue liens when the same-sex spouse or domestic partner of the Medicaid beneficiary continues to lawfully reside in the home.
LGBT older adults are disproportionately vulnerable to financial insecurity, due to job discrimination, stigma, and inequity in services like Social Security and Medicaid. According to a report last year from the Movement Advancement Project, 42 percent of LGBT elders said financial problems are a big concern in their lives, with 47 percent reporting having less than $10,000 in savings and other assets. Lesbian couples face particular hardship because of the income gender gap, with twice as many senior lesbian couples (9.1 percent) living in poverty as senior straight couples (4.6 percent).
Couples will not truly be protected until Congress repeals DOMA. Still, if states utilize this opportunity to institute some protections around Medicaid, it could spare couples from being separated and losing their homes in the meantime.