Monday, June 9, 2008


Readers of this blog --and my book -- know that I don't think marriage should be the dividing line in law for relationships that count and those that don't. But now that same-sex couples from all over the country can marry in California as of June 17, many are thinking...should we or shouldn't we? There ARE legal consequences from marrying, and some should make couples think twice. (Caveat: Talk to a lawyer in your state about the consequences of marrying. This blog is not legal advice specifically tailored to you.)

Right now, federal law does not recognize same-sex marriages, but that could change. Barack Obama supports law reform that would treat a couple married under state law as married for all federal law purposes as well. So here is sobering example of how being married under federal law might disadvantage you.

If you are an aging couple and one of you is facing nursing home care for which you need Medicaid payment, you may not want to marry if you own some or all of your assets now in separate names. The assets of both spouses are considered available to pay for either spouse's nursing home care. It doesn't matter whose name is on the asset and it doesn't matter if the couple has a prenuptial agreement. The "noninstitutionalized" spouse will only be able to keep a certain amount of money (called a "resource allowance"); everything else must be used to pay for the care or must be "spent down" before the other spouse is eligible for Medicaid.

The "noninstitutionalized" spouse will be able to remain in the couple's home, but an unmarried partner can also remain in a jointly-owned home, although for an unmarried couple the government may collect part of the value of the home after it is sold. (But the partner will never be forced to sell the home and move out.)

One instance where the couple would be better off married is if the partner facing nursing home care owns most of the assets and the partner who won't be in the nursing home has little assets in his own name. As a married couple, the spousal resource allowance will be available to the "noninstitutionalized" partner; as an unmarried couple, the person entering the nursing home will have to spend down everything, leaving nothing for his partner.

Confusing? You bet! If you think this circumstance applies to you, consult an expert in "elder law" in your state. Some rules do vary from state to state, so what I've written here isn't legal advice you should rely upon.

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