Hastings Journal on Gender and the Law

Article Title

Medicaid as Coverture


Antiquated views of women’s property rights and the status conferred by a marital relationship deprived a woman of separate property rights, treated the spouses as one unit incapable of contracting with one another, and transferred liability for one spouse’s debts to the other. These archaic, even offensive laws were largely repealed in the mid-nineteenth century. Today, women expect to enjoy a legal existence that is not consumed by the status of marriage, and to exercise property rights largely free from interference or paternalism. An examination of Medicaid eligibility rules reveals the retention and even reinstatement of the legal fiction of spousal unity. On account of the substantial risk of wealth loss to nursing home costs, Medicaid eligibility rules represent a disquieting view of married women’s separate property rights.