Windsor, DOMA and Medicare Benefits

Windsor, DOMA and Medicare Benefits

Windsor, a 2013 Supreme Court decision, was a victory for lesbian, gay, bisexual and transgender (LGBT) populations. In it, the Supreme Court ruled Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Section 3 defined marriage as a legal union between a man and a woman, and the Supreme Court found that it violated the liberty and equal protections of same-sex married couples. Windsor opened the door for same-sex spouses to apply for more than 1,000 federal spousal benefits, which previously had been denied to them.

This article will focus on Medicare benefits, specifically getting Medicare Part A without a premium and delaying enrollment in Medicare Part B. The scenarios below illustrate unequal treatment of same-sex spouses under DOMA and the victory of Windsor.

Entitlement to Part A

  1. Mildred is eligible for Medicare and has Medicare Part A without paying a premium based on her husband’s Social Security work credits. Mildred was the homemaker and the husband the breadwinner. Her husband is older than 62 and has more than 40 work credits.
  2. Nancy is eligible for Medicare and has to pay a premium for Medicare Part A, $426 per month in 2014. Nancy was the homemaker and her same-sex spouse, Betsy the breadwinner. Betsy is older than 62 and has more than 40 work credits.

Since DOMA recognized only marriages between a man and a woman, Betsy was not recognized as Nancy’s spouse. Hence, under DOMA, Nancy could not get Medicare Part A without paying a premium based on Betsy’s work credits, unlike Mildred. Following Windsor, however, Nancy can go to Social Security to apply for Medicare Part A without a premium based on Betsy’s work credits.

Other details that allow an individual to apply for premium-free Medicare Part A based on his/her same-sex spouse’s work credits include:

  • The couple has been married at least one year.
  • The couple was married in a state that recognizes same-sex marriage.
  • The spouse with work credits lives in a state that recognizes same-sex marriage.

Delaying enrollment in Medicare Part B

When Gerry turned 65, he did not enroll in Medicare Part B because he is covered by his same-sex spouse’s employer group health plan. When his spouse retired in April 2013, Gerry tried to enroll in Part B. Under DOMA, which did not recognize same-sex marriages, Social Security would have told him he would have to wait until the next General Enrollment Period and he might have to pay the late enrollment penalty. If Gerry were in a heterosexual marriage, he would have had a Special Enrollment Period to enroll in Part B when his spouse retired, and he would not have any late enrollment period.

Following Windsor, Gerry is now treated like heterosexual spouses and allowed a Special Enrollment Period to enroll in Part B when his spouse retired, and will not be charged a late enrollment penalty.

Unlike applying for premium-free Part A, same-sex spouses who claim the Special Enrollment Period to enroll in Part B do not have to prove that they have been married a year or more or that they live in a state that recognizes same-sex marriage.

Possible Increase in Part B and Part D Premiums for Higher Income Same-Sex Couples

Ellen and Sue got married in 2013 and Sue noticed that this year her Part B premium went up by over $40. She thought that odd as she had always just paid the regular premium amount (which is $104.90 in 2014) since her individual annual income is $65,000. Her partner, Ellen, however, has always paid more than Sue as her income is $120,000 a year, which is over the $85,000 annual income threshold for an individual under the Income Related Monthly Adjustment Amount (IRMAA) formula for Part B premiums for people with higher incomes. Sue scheduled an appointment with her local Health Insurance Counseling and Advocacy Program (HICAP) to investigate. The HICAP counselor explained that because of Windsor and they file their taxes jointly as a married couple, their combined annual income brings them above the $170,000 IRMAA threshold for couples. Hence Sue is now paying a higher Part B premium amount of $146.90 as well. He also pointed out that Sue would see an increase of $12.10 per month in her Part D premium due to the Part D IRMAA.

This example demonstrates how, in addition to the many positive benefits of having access to more federal spousal benefits, some same-sex couples may also see some not-so-positive changes, such as increased Part B and Part D premiums. Another not-so-positive change could be losing one’s eligibility for the Part D Extra Help (low-income subsidy) based on having increased income and/or assets as a married couple versus an individual.

For example, Phil and Paul both have low-incomes of about $15,000 a year. Phil has about $5,000 in savings and Paul has $7,000. Both of them get much of their Part D expenses covered through the Part D Extra Help program and are enrolled in Part D benchmark plans. They got married over a year ago and recently found out they no longer qualify for the Extra Help because as a married couple, their combined income of $30,000/year is above the eligibility limits.

Resources and More Information
The Social Security Administration (SSA), the Centers for Medicare and Medicaid Services and other agencies are still working on implementing Windsor, and we will post more information as policies are finalized. In the meantime, we encourage same-sex couples to contact SSA and apply for benefits they may have been denied prior to Windsor. With over 1,000 federal spousal benefits available, when in doubt, apply! Contact your local HICAP at 1-800-434-0222 for questions and/or see the links below for more information.

Our blogger Karen J. Fletcher is CHA's publications consultant. She provides technical expertise, writing and research on Medicare, health disparities and other health care issues. With a Masters in Public Health from UC Berkeley, she serves in health advocacy as a trainer and consultant. See her current articles.

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