For purposes of eligibility, does Medicaid count “same sex marriage” as married? Will my same sex spouse have the same rights to remain in the principle married homestead?
Yes, same sex marriages are legally recognized and receive the same rights as heterosexual marriages when it comes to Medicaid eligibility. This means that your same sex spouse will be able to remain living in the primary home (principle married homestead) if you relocate to a Medicaid-funded nursing home, assisted living residence, or another type of residential facility.
With the ruling of Obergefell v. Hodges on June 26, 2015, same sex marriage became legal across the United States. (Prior to this ruling, 13 states did not allow same sex marriage). As a result, all federal agencies were required to extend the same rights to same sex married couples as heterosexual married couples. This includes Medicaid’s federal spousal impoverishment protections, which are set forth to prevent non-applicant spouses of long-term care Medicaid spouses from going broke in order for their spouses to meet Medicaid’s income and asset limits. (To see financial criteria by state, click here).
To be clear, spousal impoverishment rules are for married couples (including same sex couples) in which one spouse is applying for nursing home Medicaid or home and community based services (HCBS) via a Medicaid waiver. There has been debate as to if these protections will continue to be mandatory for HCBS Medicaid waivers, but as to date, these protections are extended through 11/30/20. If there is not a subsequent extension, each state will be able to decide independently if they want to extend these rights to non-applicant spouses of HCBS Medicaid waiver applicants. Learn more here.
Same sex marriages are also extended protection from Medicaid’s estate recovery program. Essentially, following the death of a Medicaid recipient, via estate recovery, Medicaid attempts to collect reimbursement for the cost of long-term for which it paid for the deceased. In most cases, the largest valued asset that remains is one’s home. However, Medicaid is not able to take the home as long as there is a surviving spouse (same sex or opposite sex).