UPDATE: Obama Offers Relief for Same-Sex Couples Who Need Medicaid Benefits

By Chris Tymchuck
Founding Attorney


I recently attended a conference with David Godfrey the Medical Assistance (Medicaid) Director for Minnesota.  I asked him if there were plans to implement the policy advocated by the HHS allowing the well partner of a gay couple the same ability to protect assets as married straight couples have under current law.  Specifically, under current law, in cases where an ill spouse receives Medical Assistance to pay for an assisted living facility, the well (community) spouse may remain in the couples’ home.  Gay couples have no such protection as gay marriage is not allowed in Minnesota. 

Mr. Godfrey responded to my inquiry by stating that he is “in discussions with the Commissioner” on this topic and they would like to find a way to offer to gay couples some asset protection where one partner is on Medical Assistance and the other is well.  But, so far, they haven’t made any progress and are unsure how to proceed with the issue given the current legislative session.

According to the Williams Institute, not one state has taken the HHS up on its offer to protect gay seniors by allowing a well partner to remain in the couple’s home if the other one becomes ill and requires assistance. 

Once again the state of Minnesota will not take care of you and your loved ones in sickness or death, so you must take control to protect yourself and your family.


The Department of Health and Human Services (HHS), under White House direction, issued new guidelines to state directors of Medicaid programs regarding how Medicaid benefits may be administered for same-sex couples. The guidelines state, in part, that medicaid agencies are within their jurisdiction to help ensure same-sex partners can remain together in shared housing.

Medicaid care for long-term care is only available after an individual has run out of money to pay for his or her own care. In return for providing assistance, the state can take possession of the person’s house as a lien. But, federal law prohibits imposing this lien if beneficiaries are married to someone of the opposite-sex who’s still living in their home. The new guidance clarifies that states can offer this protection to the healthy partner of a Medicaid recipient in a same-sex relationship.

The new rules allow states to extend the same protection to remain in the home to a same-sex partner. While it doesn’t require state agencies to provide this relief – keep in mind that DOMA is still the law of the land –  it’s still a step forward in aiding more accepting states to grant relief to same-sex partners. Further, it shows that the Department of Health & Human Services continues to examine ways to offer more protections to same-sex couples while DOMA remains federal law. One step forward is better than none, right?

About the Author
As a Minneapolis Estate Planning and Probate attorney I help build and protect families through the adoption, estate planning, and probate processes. I also have experience working with families on issues related to their small businesses. I know how difficult it is to find time to plan for the future and I am here to help walk you through it.