January 2011 • Volume 99 • Number 1 • Page 10
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Estate-planning, other implications of the civil union law
Legally speaking, civil union partners will step into the shoes of spouses in most cases, students of the legislation say.
Shortly before this issue of the IBJ went to press, the Illinois Senate followed the House in passing SB 1716, the Religious Freedom Protection and Civil Union Act. Governor Quinn said he plans a ceremony in early 2011 at which he'll sign the bill into law.
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. It 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.
Health Care Surrogate Act, guardianships, and more
Longtime member and current vice-chair of ISBA's Trusts and Estates Section Council Ray Koenig highlighted some of the more significant aspects of the new statute for probate lawyers.
One of the most important results, Koenig said, 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.
Though the guardianship statute does not direct any priority, Koenig says that in his experience, courts generally prefer to appoint spouses as guardians, and he anticipates that courts will follow the new law's explicit intent that partners in civil unions are to be treated as spouses. And, he says, 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.
Koenig notes that 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.
Not for same-sex couples only
Though the new law's appeal to same-sex couples, who may not yet marry under Illinois law, is obvious, some couples of the opposite sex, too, may find the law's provisions appealing.
"Go to any senior citizens center," state representative Gregory Harris, the bill's principal sponsor, said, and you'll find seniors who have formed new relationships after the deaths of their spouses but who have decided against marriage for financial reasons. "If they remarry, they could lose their pensions or Social Security benefits. But without marriage, they have no legal rights to be with their new partners in the hospital," Harris said. 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, Harris and Koenig said.
"For those of us who do estate planning," Koenig says, "this has made our clients' lives much easier and simpler and allows us to take legal steps that reflect the reality of their lives." He adds that those who are considering entering or who do enter into civil unions should call their estate planner and come in for a review, just as they should upon experiencing other major life changes such as divorce, marriage, or death.
Koenig said the new law will also impact the spousal privilege for testimony. He added that it will neither affect nor be affected by 750 ILCS 5/213.1, which provides that "[a] marriage between 2 individuals of the same sex is contrary to the public policy of this State."
Harris and other gay rights advocates made no bones about their hopes for repeal of section 213.1. Distinguishing between the sacrament of marriage, which religious institutions perform based upon their faith and traditions and which is not governed or affected by governmental action, and civil marriage, the legal provision for rights, benefits, and protections, Harris said, "This is a monumental step for Illinois. I hope that it will mark a turning point in the national discussion of marriage equality."