The June 26, 2013 decision by the U.S. Supreme Court to strike down the Defense of Marriage Act (“DOMA”) changes the public benefits rules for many same-sex married couples nationwide. While Tennessee is not among the twelve states which recognize same-sex marriages, it is important to understand how this decision will impact the elderly in same-sex partnerships nationwide.

Section 3 of DOMA, which limited the definition of marriage to a union between a man and a woman, applied to public benefits such as Medicaid, Social Security, housing, food stamps, tax laws, benefits due to federal employees, and veterans benefits. In some cases the application of DOMA denied rights to same-sex married couples, and in other cases it relieved them of certain responsibilities.

The effect of the Court’s decision on elderly same-sex couples depends on the legal validity of their marriage, the state in which they currently reside, and, in some cases, whether they are in a civil union or recognized domestic partnership in a state which recognizes one or both of these unions.

In the states which recognize same-sex marriages, Medicaid will also recognize the marriage. This means that the Medicaid rules will change for same-sex married elders living in those states. The positive changes for these elders could include an increased allowance as previously given only to heterosexual married couples. Other advantages will include the ability of the ill spouse in a same-sex marriage to transfer assets to the well spouse without penalty and the ability of the well spouse to receive some of the income of the ill spouse once qualified for Medicaid under the Spousal Impoverishment Act provisions. The decision is also likely to impact Social Security Income (SSI) recipients as well as veterans receiving either pension or compensation benefits, but it is likely to take months before the full impact of the Court’s decision is understood in these areas.

If a couple is validly married in a state which allows same-sex marriage but is residing in a state which does not recognize their marriage, it is likely that Medicaid also will not recognize their marriage. If the couple is living in a state that recognizes civil unions or registered domestic partnerships, a couple joined in one of these ways may be treated as married by Medicaid. This is a situation which will vary based on several factors, and the tax treatment of these couples by the IRS may determine the answer.

Public benefits programs are complicated even for single individuals. With the new opportunities that have opened up for married couples of the same sex, the need for the assistance of an Elder Law attorney is even greater. If we can help someone you know, please don’t hesitate to contact us.