Key Legal Issues Faced by Older LGBT Adults
November 2011 | David Godfrey
Along with the aging of the baby boom generation, comes the aging of the Stonewall generation. The Stonewall generation represents a huge expansion of the number of in the number of lesbian, gay, bisexual and transgender older adults who are open about their sexual orientation and/or gender identity. While laws, beliefs, and attitudes have changed over the past 40+ years, a recent study of issues for older LGBT adults in long term care found that only 22% of LGBT respondents would feel comfortable revealing their sexual orientation or gender identity in a long term care setting.
Progress has been made. President Obama has signed executive orders, issued policy memos and directed government agencies to allow visitation by LGBT partners, honor advance directives and ordered federal agencies to not defend certain sections of the Defense of Marriage Act (DOMA) in pending litigation. Litigation is progressing on federal issues relating to DOMA, but at best the legal answers are inconsistent and in many cases contradictory. Some issues can be overcome by careful legal planning; other issues require expansion and recognition of same-sex marriage.
Older LGBT adults face many unique legal issues that can easily challenge their independence and dignity. This article will highlight five key issues.
- Economic Security. Older lesbian couples are twice as likely to live in poverty as older heterosexual couples. Savings, pensions and Social Security are the “three legged stool” of economic security for retirees. The laws relating to these programs provide special protections to legally married couples that may not be available to LGBT seniors. LGBT seniors are more likely to have only the savings and investments that they have personally earned, and not have guaranteed access to savings of a long term partner. In most states married couples have an obligation of mutual support that is not afforded to unmarried couples. Unmarried same-sex couples are not afforded the presumption of 50% ownership of property accumulated or acquired during the marriage that is automatic in community property states for married couples. Federal pension laws prohibit waiver of a married person’s survivor interest in their spouse’s pension without specific written consent, a protection not afforded to most LGBT couples. Social Security survivor benefits allow a surviving spouse to receive the greater of retirement benefits based on their earnings history or their late spouses’ earnings history. For couples with unequal earnings history the difference in Social Security benefits can be dramatic. This protection is denied LGBT couples married under state law as a result of the federal Defense of Marriage Act, discrimination that will continue until this issue is litigated and resolved or DOMA is repealed or amended. Until laws and polices change, LGBT adults need to be extra diligent in planning for retirement security.
- Health Care Decision Making. While advance directives designating a health care surrogate are being used in increasing numbers, at best about half of older adults have created advance health care directives. In absence of an advance health care directive most states have provisions for a family member to make health care decisions when a person is unable to do so. Virtually all states give priority for health care decision making to the spouse or, adult children or other biological family of the patient. As of 2009 only seven jurisdictions recognized domestic partners or civil unions in determining who should make health care decisions for a patient who is unable to do so. Even with expansion in the number of states offering legal relationship recognition for same-sex couples, these laws exclude long term, unregistered relationships enjoyed by many LGBT adults. Also, for couples who do have a legal relationship in one state, traveling to a different state may invalidate the same decision-making authority if they are in a state that does not recognize same-sex relationships. Therefore, it is essential that LGBT adults complete valid advance directives. Even with careful advance planning, there is always a risk that the directives will be challenged by biological family.
- Tax treatment. Families are favored by tax codes, and “families” are narrowly defined as marital and biological families. Married couples frequently pay less tax by filing joint returns, and can file separately in the rare event that the tax liability is lower. Unmarried same-sex couples don’t have this option and in the vast majority of jurisdictions marriage is not an option for same-sex couples, and because of DOMA, even married same-sex couples are not legally recognized when it comes to federal tax laws. Many jurisdictions provide property tax breaks if a member of the family is aged or disabled. The definitions used to determine family members for these tax breaks frequently do not include long term non-martial partners of LGBT adults who are aged or disabled. Federal estate tax and inheritance taxes imposed by some states provide significant exemptions for spouses and immediate biological family. While federal estate tax impacts less than 10% of all estates, the marital deduction can eliminate all tax liability for the surviving spouses. Many states impose an inheritance tax. Inheritance tax generally applies to bequests outside of immediate marital and biological family. The definition generally excludes most LGBT families and can result in devastating tax liability for a same-sex partner.
- Paying for long term care. The longer we live, the more likely we are to need long term health care services and supports. The majority of long term nursing home stays are paid for by Medicaid. Medicaid is a “means tested” system, meaning that to qualify for payment a person must meet strict financial qualifications. Under spousal impoverishment provisions that Congress has created married couples are allowed to protect assets to prevent the well spouse, the one not in a nursing home, from total poverty and still qualify for Medicaid to pay for nursing home care for the institutionalized spouse. These exemptions allow the well spouse to keep modest resources including a home (subject to value limits,) a car, and up to nearly $110,000 in other assets.
These same protections are not available to unmarried same-sex couples. LGBT couples in non-marital relationships are treated as single individuals, not as a family. Without careful and timely advance planning the impact can be devastating on working class and middle class LGBT families. In June 2011 the Centers for Medicaid and Medicare Services (CMS) issued a memo to states regarding Medicaid liens, estate recovery and asset rules for same-sex couples.  The memo explains that states have the discretion to exempt same-sex spouses and domestic partners from Medicaid liens imposed by some states. The memo explains that the spousal impoverishment rules protecting the transfer of assets for to provide for the needs of a spouse cannot be directly applied because of DOMA. Instead the memo suggests that states could use a little utilized “undue hardship” provision to work around asset protection for a same-sex spouse of domestic partner. The same almost-unused “undue hardship” provision is suggested as a way for states to avoid pursuing estate recovery against domestic partners and same-sex spouses. The memo does the best it can to recommend ways that states can work around the issues created by DOMA for married same-sex couples and registered domestic partners. Medicaid rules vary widely from state to state. Without careful and knowledgeable planning, well in advance of need , the burden of nursing home care can be devastating to same-sex couples, to a much greater extent than their heterosexual counterparts.
- LGBT friendly long term care. Most adults dread needing long term care and want to avoid spending time in a nursing home. Loss of independence and admission into a nursing home facility are the two most common fears of older Americans. For LGBT adults the fear is especially intense. A recent study found that more than three-quarters of those surveyed would not be open about being LGBT in a nursing home. Survey respondents had fears ranging from abuse or neglect by staff to being discriminated against by staff and other residents. Mistreatment was reported by 43% of LGBT residents in long term care. Many LGBT adults avoid disclosing their sexual orientation or gender identity in nursing homes – forcing them back into the closet. Doing this can result in limited visitation by long term partners and straining long term relationships and friendships at a time when social support may be most important. No known study has been done of LGBT adults receiving long term home and community based services and supports – it is easy to imagine that it is even harder to hide ones sexual orientation or gender identity in one’s home. These issues further complicate receiving appropriate long term care services for older LGBT adults. These issues can be addressed over time with changes in policy, training of staff, and changing societal attitudes. LGBT adults need to be especially careful with advance planning for care needs into the future to allow time to identify LGBT friendly care providers and venues.
These are just a few of the many challenges faced by older LGBT adults. To be on an even footing, LGBT adults must be proactive in planning to work around as many of these issues as possible. Policies, laws and societal attitudes are changing, and the avalanche of post-Stonewall baby boomers are likely to be driving forces for change in coming years. The Administration on Aging has responded by funding a National Resource Center on LGBT Aging and encouraging other programs to address the needs of older LGBT adults.
DAVID GODFREY is a senior attorney at the ABA Commission on Law and Aging in Washington DC.. He is responsible for the ABA’s role in the Administration on Aging funded National Legal Resource Center. Prior to joining the Commission he was responsible for elder law programming at Access to Justice Foundation in Kentucky. Mr. Godfrey earned his B.A. with honors at Rollins College in Winter Park, Florida, and his J.D. cum laude from the University Of Louisville School Of Law in Kentucky.
 The police raids at the Stonewall Inn in 1969 and subsequent uprising is felt by many to be the nexus of the LGBT civil rights movement in the United States (See generally Wikipedia.)
 SAGE et al, LGBT Older Adults in Long-Term Care Facilities
 Older Gay couples are only slightly more likely to live in poverty then older heterosexual couples. LGBT Older Adults Facts at a Glance, September 2010, www.lgbtmap.org
 1 U.S.C. § 7 and 28 U.S.C. § 1738C
 AARP Bulletin Poll “Getting Ready to Go”, AARP Knowledge Management, January 2008.
 ABA chart of default surrogate statutes.
 Arizona, California, District of Columbia, Maryland, New Jersey, New Mexico, and Washington
 1988 Medicare Catastrophic Coverage Act
 Medicaid Spousal Impoverishment Figures for 2009 Released
 How the spousal impoverishment rules apply to valid same-sex marriages is subject to ongoing litigation, public policy reforms and subject to challenges under DOMA.
 The liens encumber property that may be subject to estate recovery at the death of the Medicaid beneficiary. Estate recovery requires the estate of a deceased Medicaid beneficiary to repay the state for Medicaid services received during the beneficiaries’ lifetime.
 All transfers within five years are counted.
 80% of adults want to avoid nursing home care according to “These Four Walls”, AARP (2003).
 Attitudes of Seniors and Baby Boomers Aging in Place, Clarity (2007).
 LGBT Older Adults in Long Term Care Facilities, Stories from the field, page 6, NSCLC et al, (2011)
 Id at 8
 Id at 8