Nancy Polikoff

Important elder law publication...with a caveat

Filed By Nancy Polikoff | August 13, 2009 2:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: beyond marriage, DOMA, Elder Law Project, National Center for Lesbian Rights, NCLR, nursing home, social security

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 criticism 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.

Crossposted from Beyond Straight and Gay Marriage


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Thanks, Nancy. I read all your posts, even if I don't always comment. As always, you dissect these thorny legal issues in clear and precise language.

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

So true. Gay marriage, at this point, is a juggernaut of fear, paranoia, and misinformation, designed to convince people that it is *the* option for everyone. The sad reality is that the worthwhile alternatives we spent years crafting might be run over in this mad rush to achieve what so many wrongly believe is the only goal of the "movement."

No one should be required to have an abortion, yet abortion should be legal for any person who wants this. Likewise, no one should be required to marry, and it should be legal for any couple desiring marriage (including LGBTQ). I think that it is a great disservice that there are some individuals (i.e. Yasmin) so vocal AGAINST many types of LGBTQ rights, that is, those associated with marriage. Why don't you want marriage available to the LGBTQ community? Like a commenter to your post a few weeks ago, (and seconded by Bil), just what are you FOR? The LGBTQ community should welcome, and be enriched by diverse opinions. However, simply being a gadfly, especially AGAINST rights that many LGBTQ want, is not constructive. Your plan seems to be to work to keep LGBTQ "down" and without equal rights, until your version of Utopia is evolved in society at large, then we get some rights. Well, lots of us want rights NOW, in our lifetimes, and what we want is FULL EQUALITY. Denying LGBTQ marriage is not full equality. If you are not the marrying type, or dislike marriage for some other reason, fine. But why fight against what many of the LGBTQ community want, and feel would benefit their lives? I have never seen written or heard that marriage will be the panacea. However, for many, living without marriage can cause lots of unnecessary problems.

Isn't this why Domestic Partnerships in California are available to opposite-sex couples with one partner over the age of 62?

It's funny you raise this. You are right that availability of DPs when one partner is over 62 is based on the disadvantages of marriage to some elder couples. But...and this is the funny part...the age 62 really doesn't make sense. Although it is the earliest age a person can receive social security benefits, a person can receive those benefits based on a former spouse's income as long as the person doesn't remarry before age 60. I have contacted many elder law specialists and no one has figured out why the magic age in these heterosexual DP statutes would be 62. My guess is that someone in California picked the age out of the air without really dissecting all the statutes, and other states have followed California.

beachcomberT | August 14, 2009 10:06 AM

I have been an advocate of same-sex marriage mainly as a means toward getting Social Security equality. But since marriage looks like an elusive goal for the next 8 years (esp. with a president who injects "God into the mix" to resist or go-slow on marriage equality), maybe we should change focus and work on Social Security now and put marriage on the back burner. Realistically, a lot of aging Boomer couples will probably be dead before marriage becomes available nationwide. And younger gay families need SS reform so they can qualify for survivor benefits for the surviving parent as well as the kids.