Ronald Fatoullah & Associates - Elder Law

New York State Legalizes Same-Sex Marriage


On June 24, 2011, New York's Marriage Equality Act was signed into law. Effective July 24, 2011, the law gives same-sex couples the right to marry in New York. Along with the right to marry whomever your heart desires, the new law will give same-sex couples, who do ultimately marry, many benefits and protections of marriage that only heterosexual couples were able to enjoy. Some benefits include the right to inherit assets, employer health benefits and various state tax benefits.

There likely will be a flood of same-sex couples who will take advantage of getting married in the Big Apple. Before same-sex couples take the plunge, they should understand not only the rights and benefits, but also the responsibilities that one spouse has to the other. This is especially true for same-sex seniors looking to tie the knot.

Spouses are considered "legally responsible relatives" for each other's health care needs. In a Medicaid context, the well spouse with assets over the "community spouse resource allowance" and income over the "minimum monthly maintenance needs allowance" can sign a spousal refusal. And, as long as the assets of the ill spouse is at or below Medicaid's asset level of $13,800 (plus exempt assets), then Medicaid will be approved. However, when a spousal refusal is signed, Medicaid can, and usually will go after the assets of the well spouse who is legally responsible for the health care needs of the ill spouse. Therefore, for many seniors, it will not make financial sense for same-sex senior couples to marry.

There are other important issues that often arise. Many same-sex couples have children from a prior relationship. Most same-sex couples want to ensure that upon their demise that their partner is well taken care of, but not at the expense of their children. Proper planning will make sure that all parties are properly protected.

In addition, New York protects a "surviving spouse" by allowing the spouse a right to a share of the estate of the deceased spouse. This right, called the "right of election", exists regardless of what the deceased spouse may have directed under his or her will or whom he or she had designated as beneficiaries of his or her accounts or even in trust. This right only exists for spouses and may create unwanted results. For example, in the event that a well spouse predeceases an ill spouse on Medicaid, the ill spouse will be considered to have (or transfer) the right of election assets. These additional assets will make the sick spouse ineligible for Medicaid purposes. It should be noted that this right of election can be waived for estate tax purposes, but not for Medicaid purposes. All married couples, including same-sex couples, must plan for this possibility.

It is also important to remember that with all the benefits that New York is opening the door to same-sex couples to enjoy once they are married, New York law applies to benefits only on the state level. Under federal law, married same-sex couples are not treated equally and are not afforded the same benefits as married heterosexual couples. This is because the Defense of Marriage Act (DOMA) precludes the recognition of same-sex marriages under federal law, even if the marriage is valid where entered into. Hence, a surviving spouse of a same-sex marriage is not eligible for Social Security spousal, survivor, or death benefits. Veteran's benefits are also not afforded to a surviving spouse of a same-sex marriage.

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