I thought I might take a minute to update you on the issue of same sex partnerships/marriages and qualification for Medi-Cal as well as the Medi-Cal recovery rules.

Eligibility
First, we need to distinguish between the Federal programs and California programs. All Federal programs are governed by Federal law, specifically the Defense of Marriage Act of 1996 (“DOMA”). That act prohibits any Federal program from recognizing same sex marriages/partnerships. So for purposes of determining Social Security benefits, SSI, SSDI, and Medicaid, same sex marriages/partnerships are disregarded.

However, these relationships are recognized for purposes of all “state only” programs, such as the:

• Dialysis Program;
• Total Parental Nutrition Program;
• Medically Indigent Adults in Long-Term Care (not linked to a Federal program);
• Minor Consent Program; and
• Breast and Cervical Cancer Treatment Program.

Due to the limited scope of these programs, the application of the California same sex marriage/partnership rules will be of little significance. However, these same rules also apply to the CalWorks program. CalWorks is a program designed to provide a safety net for families with children. If the family (which includes registered domestic partners and same sex marriages) has children or are pregnant and either 1) One or both of the parents are absent from the home, deceased or disabled, or 2) Both parents are in the home but the principal wage earner is either unemployed or working less than 100 hours per month, and the family has less than $2,000 of non-exempt assets, the family will qualify for a variety of public assistance.

Recovery
Under many circumstances when a Medi-Cal recipient passes away, their estate is subject to a claim by the Department of Health Care Services for the benefits they have received. But under the Federal law, these claims may not be recovered under a variety of circumstances including if there is a surviving spouse. Although who qualifies as a “surviving spouse” is again controlled by Federal law, it appears the DHCS is informally treating survivors of registered domestic partnerships and same sex marriages as surviving spouses and applying appropriate exemptions.

It is also noteworthy that in a recent pronouncement from the (Federal) Centers for Medicare and Medicaid Services the director stated:

A State can have a policy or rule not to pursue liens when the same-sex spouse or domestic partner of the Medicaid beneficiary continues to lawfully reside in the home.

And

The exemptions for transferring assets to a spouse cannot be directly applied to same-sex spouses or partners as a result of [Defense of Marriage Act of 1996]. . . . However, under section 1917(c)(2)(D) of the Act, a transfer of assets penalty period will not be applied if the State determines, under procedures established by the State, that denial of eligibility would create an undue hardship.

For purposes of applying this rule, the legal relationship between the deceased Medi-Cal recipient and the survivor is not limited to someone “married” as defined by Federal law.

The Law Office of Roy W. Litherland is a member of the American Academy of Estate Planning Attorneys.