New York’s passage of the same-sex marriage law last year was seen as an important step in ensuring fairness and equality for all residents. Of course, as each New York elder law estate planning attorney at our firm has explained, same-sex couples still have unique planning needs because their marriages in our state are not recognized at the federal level. This lack of recognition is mandated by the federal legislation passed in 1996 known as “The Defense of Marriage Act” (DOMA).
Several recent legal challenges have been mounted against DOMA, seeking to overturn part or all of the law on federal constitutional grounds. In fact, last February President Obama admitted that he considered the law unconstitutional and would no longer defend it in court. This led to much political consternation as various Congressional leaders who support DOMA sought ways to take up the defense.
Late last week, a federal judge in one of the cases challenging DOMA indicated that she is likely to strike down at least part of the law as unconstitutional. The issue in that case relates specifically to participation in long-term healthcare programs for state employees. Right now same-sex spouses and domestic partners of federal employees are denied the right to participate. Opponents of DOMA have argued that the government has no proper basis for the exclusion of these couples other than prejudice against gays and lesbians.
The judge agreed, noting that defenders of the law, “have failed to show a plausible, legitimate, rationale for excluding registered domestic partners from (the law’s) list of eligible family members (for the tax benefits), and the court can think of none.”
The judge in the case went on to note that statements made by supporters when enacting the ban in Congress indicate that it was motivated by “antipathy towards same-sex couples.” Of course excluding same-sex partners from long-term healthcare assistance simply because of distaste for the couple is an unconstitutional overreach.
This particular case is a reminder that the challenges facing same-sex couples is not only related to estate planning but also elder care. Local same-sex couples have the same concerns about New York Medicaid assistance, long-term care insurance, and other senior issues. Lack of federal recognition of their unions has effects on strategies that are employed when it comes to these long-term care issues. That is why it remains essential for same-sex couples in our area to visit with a New York elder law attorney to ensure that they are well-positioned to receive the extra care they might need down the road.
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