Newly Posted Article - "MassHealth Implements Equal Treatment for Same-Sex Married Couples"
[November 12, 2008]
Susan H. Levin

Beginning October 31, 2008, MassHealth will implement the MassHealth Equality Bill, passed by the Massachusetts legislature to afford same sex married couples the same treatment as heterosexual married couples under the MassHealth (Medicaid) program. The legislation was necessary because Medicaid is both funded and governed pursuant to federal and state law. The federal Defense of Marriage Act (DOMA) prevented recognition of same sex marriages in determining Medicaid eligibility where federal funds were involved. To resolve the conflict in this legislation and DOMA, the cost of Medicaid for members of same sex marriages who become eligible for MassHealth as a result of their marital status, will be borne by the Commonwealth of Massachusetts alone, rather than shared by the federal government.

MassHealth (Medicaid) offers many financial protections to married couples that are not available to unmarried couples. For example, one spouse may transfer assets to the other without penalty. In contrast, most transfers by an unmarried person would be subject to a five-year look-back and transfer penalties. As another example, ordinarily an individual in a nursing home must apply his monthly income toward the cost of nursing home care. But if the individual is married, and the spouse at home has insufficient income to meet her needs, the spouse at home may be entitled to keep some of the income of the nursing home resident for her support.

Despite these spousal protections, unmarried couples are sometimes better protected under MassHealth than married couples. The spouse of a nursing home resident is allowed to keep $109,540 (as of 2009) of the married couple’s assets. The nursing home resident is allowed to keep $2,000. Countable assets that exceed $111,540 will have to be spent before Medicaid eligibility can be established. In contrast, there is no limit of any kind on the assets of the member of the unmarried couple at home. If most of the assets of the couple are titled in the name of the partner at home, it may be more advantageous not to be married. MassHealth has decided, however, that a spouse in a same-sex marriage cannot choose to be treated as an unmarried person even if such status would benefit the couple. In short, same-sex marriages must be treated the same as heterosexual marriages for all MassHealth purposes.

Same sex couples already qualified for MassHealth or who contemplate needing MassHealth coverage in the future would be wise to consult qualified legal counsel to advise them of the ramifications of this change.

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