Dear Mr. Premack: I have a question about federal benefits, specifically Social Security and Medicaid. Texas’ current law does not recognize the validity of any same-sex marriage. My husband and I were legally married in Washington State, but relocated to Texas to be near our families. He is 65 and I just reached 58. He is suffering from early onset dementia and, I fear, I a few years may need to move to a nursing home. Will Texas recognize our marriage for Medicaid purposes? When he dies, will I be able to receive his Social Security benefit like any other surviving spouse? Thank you. – L.W.
In 2005, 65% of Texans voted to ban same-sex marriage by adding this statement to the Texas Constitution’s Bill of Rights: “Marriage in this State shall consist only of the union of one man and one woman. This State or a political subdivision of this State may not create or recognize any legal status identical or similar to marriage.” Public opinion has changed dramatically since then; a recent University of Texas poll shows that now 69% of Texans favor accepting some form of same-sex union.
Same-sex unions are legal in Illinois and 34 other states, but not yet in Texas. (c) 2014 Paul Premack, Chicago skyscrapers
In light of the Windsor decision from the U.S. Supreme Court in 2013, various federal courts have ruled that same-sex marriage bans violate the U.S. Constitution. As of summer 2014, California, Connecticut, Delaware, Hawaii, Iowa, Illinois, Indiana, Maryland, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington State, Wisconsin and Washington, D.C. have legalized same-sex marriage by statute or by court action. Colorado has civil unions and Nevada has domestic partnerships. (As of January 2015, same sex-marriage or unions are legal in AK, AZ, CA, CO, CT, DE, HI, ID, IA, IL, IN, KS, ME, MD, MA, MN, MT, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, SC, UT, VA, VT, WA, WV, WI, and WY, plus Washington, D.C.; in AR, FL, KY, MO, MI, MS, and TX, judges have struck down marriage bans but the rulings are under appeal.)
The Texas ban on same-sex marriage has been ruled unconstitutional by a federal court, but enforcement of the order is on hold pending appeal). As of January 2015, same-sex marriage is still not recognized as valid in Texas. How does that affect you and your husband relating to Medicaid and Social Security?
The U.S. Attorney General issued a Memorandum to the President on June 20, 2014 outlining the federal government’s compliance with the Windsor decision. Generally, if a couple’s marriage was celebrated in a state that grants equal marriage rights, the federal government grants equality of federal benefits. This is called the “place of celebration” rule, and would generally allow a couple legally married in Washington State to continue receiving federal benefits after moving to a non-recognition state like Texas.
There are, however, exceptions to the “Place of Celebration” rule. Currently, the Medicaid program allows each state to decide whether to recognize same-sex marriages. Texas does not. Hence, you and your husband are not married for Medicaid purposes in Texas. Non-recognition may be good or bad, depending on your circumstances. For instance, if you (the healthy spouse) own a variety of assets but your husband (the ill spouse) has very few assets, non-recognition of your marriage could work in your favor because Texas cannot deem that your assets also belong to him. On the other hand, non-recognition could work against you because you are denied the spousal income allowance and the expanded spousal resource allowance. Talk to a Certified Elder Law Attorney about the exact impact this could have on you.
Social security is another major exception to the “Place of Celebration” rule. Currently, Social Security can only pay benefits to spouses whose state of domicile at the time of application for benefits recognizes their marriage. Several bills are pending in Congress to change this law, but have not reach the floor for a vote. If you were domiciled in Washington State when your husband applied for Social Security, you should be entitled to survivor benefits. As of January 2015, if you were domiciled in Texas when he applied for Social Security, you will not be entitled to survivor benefits.
Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington, and handles estate planning for all ages, probate law and business entity formation issues. Submit estate, probate, elder law and LLC questions at www.Premack.com, or go there to view the archive of past legal columns.
This column appeared in the San Antonio Express News on June 23, 2014.