Sunday, January 23, 2011

Illinois Civil Unions (Bloomington Legal Newsletter)

I have received a number of questions regarding the civil union bill that was recently passed by the Illinois Senate and House, and which is expected to be signed into law by Governor Quin shortly. The following is meant to be a brief overview of the new law and some of its effects.


Governor Pat Quinn has already pledged to sign SB1716, the "Illinois Religious Freedom Protection and Civil Union Act," which passed in the Senate by a 32-24-1 vote, and passed the Illinois House by a 61-52 majority vote. Assuming the governor signs the bill as he has promised, civil unions can begin in June. The process for getting a civil union will be very similiar to obtaining a marriage license. It will not require applicants — straight or gay — to sign affidavits stating that they live together.

The new law will neither affect nor be affected by 750 ILCS 5/213.1, which provides that "[a] marriage between two individuals of the same sex is contrary to the public policy of this State." The new law ignores the prohibition against gay marriage, and simply incorporates all the rights of marriage without calling it marriage. At its essence, the bill says that two people who have entered into a civil union are entitled to the same legal treatment under Illinois law that is presently given to spouses. In this way, the new law grants all the rights of marriage except for the name.

While thought of as a historic step forward for gay rights in Illinois, the new civil union bill also extends opportunities to heterosexual couples who do not want to wed but seek many of the legal protections of marriage. Those who drafted the law felt it important to be inclusive, given the bill's intent of opening up rights that had long been denied to a demographic group.

Senior citizens is one group who lobbied for the bill. There are a good number of seniors who have formed new relationships after the deaths of their spouses but who have decided against marriage for financial reasons. Without the new law, seniors with survivor's benefits from Social Security or a pension could lose that income if they remarry. A civil union will allow them to keep that benefit while providing the same state-level rights as a marriage. Because federal law doesn't recognize civil unions as equivalent to marriage, those in that situation may find that entering into a civil union provides them with the best of both worlds, enabling them to protect their retirement income and other benefits and also be able to be with their new partners in the hospital and, if necessary, make health care decisions for them

The new law will provide couples of the same or opposite sexes with the option of entering into a civil union that will provide them with the same rights, responsibilities, protections, and benefits that marriage provides under state law, whether common law, statute, or administrative policy or regulation. The new law also mandates legal recognition of civil unions, marriages between persons of the same sex, or any other substantially similar legal relationship other than common law marriage that two persons enter into in any other jurisdiction. Couples will be able to dissolve their civil unions under the provisions of the Illinois Marriage and Dissolution of Marriage Act. The obligations for dissolving a civil union are exactly the same as in dissolving a marriage. You would see a potential for alimony, division of property, everything.

While no civil union provides a couple with federal rights — such as Social Security survivor's benefits or the ability to file joint tax returns — Illinois' civil union bill gives the couple access to all state-level marriage rights, including health care benefits from any company that offers a spousal plan.

Medical issues

Hospital visitation rights and the ability for partners in a civil union to make health care decisions for each other are key parts of the bill. Previously, a same-sex partner would be the last person allowed to make a medical decision for someone incapacitated, following all manner of blood relatives and falling under the classification of "close friend."

One of the most important results will be that couples who have done no estate planning but have entered into civil unions will immediately jump to the head of the line for purposes of decision making under the Health Care Surrogate Act (HCSA), 755 ILCS 40/1 et seq. That statute, which establishes a priority for patients and their surrogates to make decisions about medical treatment and end-of-life care, including decisions to continue or withhold life-sustaining measures, without court involvement, currently assigns the partner of an unmarried patient to the category of "close friend" (see 755 ILCS 40/10). Under the HCSA, that's the last level of decision-making priority. 755 ILCS 40/25. The patient's guardian of the person and spouse fall into the first and second priority, respectively. Once the new law takes effect, patients' civil union partners will stand in the same shoes as spouses. In the past, if you didn't have a power of attorney that spelled that out, you were out of luck.

Estate planning

The new law will benefit many couples who couldn't afford the costs of proper estate planning. Very often heterosexual couples go and put financial documents in place, but absent that, they have certain presumptions under the law if they haven't done that. But same-sex couples had no rights like that. It's an expensive process, and many can't afford it.

Now, a same-sex partner will have the same inheritance rights as a spouse in a heterosexual marriage. Benefits from a state pension will pass on when the worker dies. Pensions are huge. If an Illinois policeman or fireman is killed in the line of duty, the spouse gets a surviving pension benefit. That, prior to this law, was not available to same-sex couples.

The rights of partners in civil unions will extend to post-mortem proceedings. Just as widowed spouses may do, widowed civil union partners will now have the right to contest or renounce their partners' wills.

Though the guardianship statute does not direct any priority, courts generally prefer to appoint spouses as guardians, and it is anticipated that courts will follow the new law's explicit intent that partners in civil unions are to be treated as spouses. And, if anyone else, such as siblings or parents, begins guardianship proceedings against a person in a civil union, the person's partner will now have to be given notice.

No federal protection

Although the new law will give same-sex couples extensive protection on the state level, their relationships remain unrecognized by the federal government. The federal Defense of Marriage Act prevents gay and lesbian couples — even those in a civil union or married in a state that allows same-sex marriage — from receiving a Social Security survivor's benefit or filing joint federal tax returns. Also, the value of domestic partner benefits is treated as income and taxed by the federal government.

Economic impact to the State

The biggest savings for the state can come from the way civil unions affect social services. For example, if a person in a same-sex relationship applies for Medicaid, the partner's income isn't factored into the equation unless the couple are either married or in a civil union. If there's a civil union partner, that person gets considered, and the combined income might make the person ineligible. That effect can result in millions or even tens of millions in savings for state government. It's not going to solve any economic or budget crisis, but it should have a slight positive impact for the state.



This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be
sought in particular matters.

Jon D. McLaughlin, Esq.
Allison & Mosby-Scott
210 1/2 North Williamsburg Drive
, Illinois 61704
Phone: (309) 662-5084
Cell: (309) 319-6206

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