Coming this Summer! Illinois Civil Unions!

Although it sounds like a movie trailer and promises to be an interesting adventure, Illinois Civil Unions are not a Hollywood inspiration. Rather, they are the result of the new Illinois Religious Freedom Protection and Civil Union Act, 750 ILSC 75/1 et seq. effective June 1, 2011 (the “Civil Union Act”). The Civil Union Act provides an alternate to marriage in Illinois. Persons entering into a civil union will enjoy the same rights, interests, benefits and burdens available to spouses in marriage under Illinois law.

Health Care Agency and Civil Unions: One of the primary benefits to entering into a civil union is that the partner in the civil union will have the rights of a spouse under the Health Care Surrogate Act. In plain English this means that he or she will no longer be considered a non-family member and will not be potentially banned from a hospital room as such. In addition, as a spouse he or she may have the right to make medical decisions in hospitals, nursing home, hospice facilities and other medical settings. Prior to the Civil Union Act, in order to assert these rights, the partner would need to present a valid power of attorney for health care. A word of caution: the Civil Union Act does not make the need for a Power of Attorney for Health Care disappear; rather, it puts life partners in a civil union on the same footing with spouses in a marriage. In order to protect your rights and make sure your wishes are respected, execute a Power of Attorney for Health Care.

Inheritance and Death: At the death of the first partner to die in the civil union, the surviving partner has rights in inheritance similar to a spouse. For example, he or she may be considered a spouse for the Illinois assets of the deceased. But beware, herein lies a major pitfall. The Federal government will not recognize the civil union partner as a spouse for purposes of Federal law under the Defense of a Marriage Act. Thus, by entering into a civil union, the partner will not have the Federal rights of a spouse to social security payments, retirement or health care benefits from federal employer plans, and will not enjoy spouse status for purposes of the Federal estate tax or other taxes. In addition, it is unclear that each state will treat this partner as a spouse for assets sited in the borders of that state. Some, but not all, of these issues may be addressed through estate planning documents including a will, a trust and a power of attorney for property.

Parentage and Dissolution of the Union: In marriage, a child born is assumed to be the child of both parents. Children born to a partner in a civil union may be considered to be the children of both partners, but this issue is not as clear cut as you might imagine. In a same sex civil union, that presumption may not stand.

Should the partners in a civil union wish to part, divorce is the answer. As in marriage, civil unions are considered legal relationships and therefore must be ended as you would end a marriage through divorce, annulment or death. As always, guardianship of minor children is determined by considering the best interests of the child. In a civil union, this issue may be very emotionally charged.

Because there is not a direct answer to this question, the partners to the civil union are encouraged to use an adoption proceeding to finalize parentage. If the child is not adopted by either both partners, or by the partner not giving birth, the issue of parentage in a dissolution of a civil union or at the death or disability of a partner may be complex. The parties should put their wishes in writing in a designation of guardianship in a Will to take control in the event of death and in a Standby Designation of Guardianship in the event of disability.

Not Limited to Single Gender Couples: When discussing the Civil Union Act, most people focus on the benefits of a civil union for single gender couples. However, there are advantages to entering into a civil union for opposite sex couples who chose not to marry. In fact, elderly couples who want to protect their social security payments and continue to receive pension benefits from a deceased spouse are likely to choose a civil union over marriage.

Completing the Picture: While the Civil Union Act takes same sex couples and non-marrying couples to the next level of rights, it is not enough alone. When considering a Civil Union, partners should also think about executing the following documents:

  1. A Pre-union Agreement
  2. An Estate Planning Trust and Last Will and Testament
  3. A Power of Attorney for Health Care
  4. A Power of Attorney for Property
  5. Guardianship Designation in a Will and in a Standby Designation of Guardianship.