Do Spousal Impoverishment Protections Apply to Same-sex Married Couples?

gay marriageUpdated! On October 6, 2014, the United States Supreme Court refused to review the lower court decision finding Wisconsin’s same-sex marriage prohibition unconstitutional. In plain language this means that the decision stands, and same-sex marriage is legal in Wisconsin!


In a decision dated June 6, 2014, Judge Barbara Crabb has struck down Wisconsin’s constitutional amendment prohibiting same-sex marriage in Wisconsin. You can read her full decision here. As a result, many same-sex couples are happily marrying in Wisconsin. Nonetheless, the legal decision is being appealed, and the future is somewhat uncertain at this time.

So how will these newlyweds be affected if one of them needs long term care in a nursing home? Under the federal policy guidance issued by the Center for Medicare and Medicaid Services shortly after the decision of the United States Supreme Court in U.S. v. Windsor, same-sex couples whose marriage is legally recognized in in the state where the Medicaid application is made, will be treated exactly like heterosexual married couples.

This means that for those couples who now marry legally in Wisconsin, spousal impoverishment protections  will apply if one of them needs long term care Medicaid. I have written about these protections here. Also, spouses can transfer assets to each other without a divestment penalty. There is still some concern whether the marriages taking place in Wisconsin now will ultimately be recognized as legal if Judge Crabb’s decision is overturned. That concern should be resolved in due course.

As I advise all couples, from the perspective of Medicaid issues, marriage can be a double – edged sword. On the one hand, the couple has a more generous asset level than a single person. On the other hand, all of the assets belonging to either spouse are counted (with some exceptions) and subject to a maximum. On the one hand, couples can transfer assets to each other without penalty. On the other hand,  there will be estate recovery from the surviving spouse’s estate. Couples considering marriage  need to weigh the advantages and disadvantages from the Medicaid perspective if that is a concern.  I am happy to help address those questions. and am looking forward to working with same-sex spouses on these issues.

In the broader context, Attorney Ruth J. Irvings, my former partner at Nelson Irvings & Wessels, who is now at the Law Offices of Ruth J. Irvings, has considerable experience and expertise in same-sex couple counseling and estate planning. Couples may want to consider seeking legal advice from Ruth in making this decision.




About Carol J. Wessels

I am an Elder Law Attorney practicing in Wisconsin. I am the owner of Wessels Law Office LLC in Mequon, WI. I handle Medicaid, Long Term Care planning, special needs trusts, guardianship, advance directives, elder abuse and other related issues for elderly and disabled clients and their families. My Mother Velma lived with Alzheimer's for fifteen years until she died on Jan. 24, 2015, which has given me a personal perspective on elder law issues as well.
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