Monday, May 25, 2015

Modern Day Coverture? Medicaid Eligibility Rules' Harsh Effect on Married Women

University of South Dakota Assistant Professor of Law Thomas E. Simmons has an intriguing article in the summer 2015 issue of Hastings Women's Law Journal.  From his article, "Medicaid as Coverture," here are some excerpts (minus detailed footnotes)  to whet your appetite:

Not long ago, married women possessed limited rights to own separate property or contract independently of their husbands.  Beginning in the nineteenth century, most of the most serious legal impediments to women enjoying ownership rights in property and freedom of contract were removed....


Three twenty-first century developments, however, diminish some of this progress.  First, later-in-life (typically second) marriages have become more common.... These types of couples were not the spouses that reformers had in mind in designing inheritance rights or other property rights arising out of the marital relationship....


Second, perhaps as a product of advocacy for women's property rights, and perhaps out of a larger social remodeling, women's holdings of wealth have made significant advances.... [But] women of some wealth (in later-in-life marriages, especially) may in fact find themselves penalized by the very gender-neutral reforms that were designed to help them; especially, as will be unpacked and amplified below, when those reforms interface with Medicaid rules.


Third, beginning in the late twentieth century, the possibility of ongoing custodial care costs became the single greatest threat to financial security for older Americans.

As practicing elder law attorneys experience on a daily basis, Medicaid eligibility rules, despite the so-called "Spousal Impoverishment" protections, can impact especially harshly on married women as the community spouses.  They are often younger and thus will have their own financial needs, frequently have been caregivers before being widowed, but their personal assets may still be included in the Medicaid estate for purposes of determining their husbands' eligibility. This article takes a critical, interesting approach to that problem.

Discrimination, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink

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I hope pre-nups were addressed in the article mentioned here. Too many people think that a pre-nup protects the “wealthier” individual’s assets when it comes to trying to get the “poorer” of the two qualified for Medicaid. Not.
Adult children who see their mother swept off her feet by a late-in-life romance leading to marriage may think that everything was “taken care of” when they’re able to have her see the need for a pre-nup. They think the comfortable financial status of their mother, thanks to a deceased father’s good planning, will stay intact, especially when they see that Mom married a not-so-comfortable man whose health fails. It’s a real jolt when their mother winds up paying her new husband’s long term care costs, even if his own level of assets would have otherwise qualified him for Medicare.
These adult children would be wise to encourage Mom to just live with the guy without benefit of matrimony. There are a lot of seniors out there who think that if they choose to shack up (versus marry), their kids would be scandalized. Kids, try to quash that thinking …… lots of money could be at stake. Tell them to live together, not marry.

Posted by: Jennifer Young | May 25, 2015 7:28:44 AM

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