For Clients, Advisors & Community
On June 1, 2011, legislation establishing civil unions went into effect
in Illinois. This is a major step in marital rights for gay and lesbian
couples. What’s interesting, however, is that the law potentially
impacts, perhaps in a major way, heterosexual couples as well.
This article will outline the features of the new law as well as its impact
on some of our clients and their families. A follow-up article will discuss
the choice of civil union versus marriage and the tax and benefits issues
relevant to civil unions.
What is a civil union? A “civil union” is a legal relationship
between two persons of either the same or opposite sex. It excludes relationships
involving more than two people. The parties to a civil union in Illinois
are “spouse”, “family”, “immediate family”,
“dependent”and “next of kin”.
There’s a set procedure in Illinois for a civil union to be valid.
It requires a license and a certificate be issued, much like a marriage.
The Illinois law recognizes civil unions legally entered into in another
state. It does not apply to common law marriage. It also allows issuance
of licenses and certificates for civil unions to individuals who live
in or intend to live in another state, as long as that jurisdiction does
not have its own law prohibiting civil unions.
Many laws that apply to a married couple apply to unions under the civil
union act including separation, divorce, alimony, custody, child support,
inheritance, right to take a minimum share under will, right to make health
care decisions and right
to visit in a hospital.
Also, under the Illinois Spousal Continuation Act, a spouse and dependent
children who lose health care coverage due to the death or retirement
of the employee (or due to divorce of the employee) are entitled to continuation
of coverage under certain circumstances. It appears that the civil union
spouse of an employee would be entitled to this benefit.
This is by no means a comprehensive list of benefits available. Suffice
it to say that there are many benefits
available to a spouse under the new civil union law in Illinois.
There are some questions, burdens, and responsibilities that come along
with being a “spouse” under the new law. First, under the
Family Expense statute, married couples are responsible for family expenses
including, in particular, medical expenses. A spouse under the civil union
law would be responsible for the medical expenses of his or her spouse
under this statute.
In addition, the law concerning “tenants by the entireties”
protects a husband or wife from a creditor taking their home due to a
judgment against the other spouse. However, the law in this case specifically
states, “husband” or “wife”. Hence, unions under
the civil union law do not
at this time
appear eligible for protection as tenants by the entireties. Once the
legislature changes the statutory language from “husband and wife”
to “spouse”, this benefit might become available.
Because of the (Federal) Defense of Marriage Act, there is a “disconnect”
between Federal law and Illinois law when it comes to taxes and certain
Federal benefits. These significantly impact the decision, particularly
of whether an older same-sex couple should choose the traditional marriage
route or a civil union. I will address these and other related concerns
in the follow-up article on civil unions.