Wednesday, August 12, 2009

Important elder law publication...with a caveat

I was so excited to see the National Center for Lesbian Rights' new publication, Planning with Purpose: Legal Basics for LGBT Elders, available on line here. Basically, I love any publication that explains the law to people in a clear and useful way.

So why the caveat? Well, the section on relationship recognition begins with a section entitled "Federal Law Discriminates Against Same-Sex Couples." Of course this is about DOMA and the federal government's unwillingness to treat as married those same-sex couples who are legally married in their states. This is the beginning of an incomplete picture of the significance of marriage under federal law, especially involving elders. Bottom line: Sometimes it is economically BETTER to be an unmarried couple.

The publication importantly notes the rules that protect a spouse's right to stay in a home if one spouse goes into a nursing home on Medicaid. There is also a set-aside of a certain amount of assets. But the publication completely ignores the fact that if one partner owns most of the assets and it is the other partner who needs nursing home care, then being UNMARRIED is the best economic protection. That's because an unmarried person's property is his/her own; none of it needs to go towards the care of the person in the nursing home. If the couple were married, all of the assets of both partners, with limited exceptions, would have to go towards the care of the partner in the nursing home. Furthermore, if the couple owns a house together, elder law experts say that the unmarried co-owner will be allowed to remain in the home.

Now when an unmarried heterosexual couple sees an elder law specialist to learn the consequences of getting married, the lawyer will relate these rules. The couple may decide not to marry because of the different treatment of married and unmarried couples. The NCLR publication just does not present the information a same-sex couple would need to make a similar decision if DOMA repeal meant that a same-sex couple's marriage WOULD be recognized under federal law.

The publication also discusses the disadvantages same-sex couples face under social security law, but it again fails to put the status of unmarried couples in the context of who gets what social security benefits. This is a criticm I leveled at GLAD's lawsuit challenging DOMA. Read about that here.

So here is my question. Why present our inability to marry and obtain federal recognition of those marriages as always a bad thing when it is not? This is a huge oversight in a publication about elders. After all, heterosexual elders have been choosing to live together without marrying since before it was even socially acceptable to do so. (You know...they were companions.)

To me this is the triumph of a pro-marriage ideology over the goal that any LGBT publication should have --- accurate and complete information.


Isaac said...

Despite all these benefits for parentage and Social Security in Spain for married couples, being married could be an economic disadvantage. In fact, the spouses were allowed to tax separately in order to avoid such a economical disadvantage. For the generation of my grandparents, only the husband earns money and taxes, and thus joint taxing is more advantageous. But in my generation everybody earns and its is more advantageous to tax separately, but in my generation unmarried people are majority among childrenfree couples. In the generation of my parents, the wife used to have a part-time job and people prepare both tax drafts, jointly and separately, and they present the more advantageous, which depends on the year.

And I strongly agree your claim about pro-marriage ideology.

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