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Trusts & Estates
The newsletter of the ISBA’s Section on Trusts & Estates

July 2013, vol. 60, no. 1

What do the Supreme Court decisions on same-sex marriage mean for Illinois?

On Wednesday, June 26, 2013, the U.S. Supreme Court handed two anxiously awaited decisions. These two rulings on same-sex marriage have been widely discussed in national and local media. But what is there impact for Illinois residents? In short, neither of these monumental decisions has any immediate, significant effect on Illinois residents. They do make it important for clients to consider revising their current wills and trusts to address how they want carry out their intentions on these issues.

The DOMA Case

Decision: The first case, United States v. Windsor, held that part of DOMA (the Defense of Marriage Act adopted by Congress in 1996) was unconstitutional. It invalidated Section 3 of DOMA, which stated that only a marriage between one man and one woman could be considered a marriage for any purpose of federal law. The Court found that Section 3 denied gay couples both due process and equal protection rights under the Constitution.

Result: The federal government must recognize same-sex marriages that are recognized under state law. At this time, 12 states and the District of Columbia allow same-sex marriage. Couples in those marriages will now be entitled to the more than 1,100 benefits federal law already provided to married couples, including the tax benefits.

In Illinois: Illinois recognizes civil unions but does not currently permit same-sex marriage. The Civil Unions Act does state that couples in a civil union will be treated as married couples for all purposes of Illinois law. It is clear, however, that a civil union is not a marriage. The Illinois law also recognizes same-sex marriages from other states as the equivalent of civil unions in Illinois. The Windsor case, therefore, does not affect residents of Illinois at this point. In the future, civil unions may qualify for certain federal benefits depending upon how various agencies decide to apply the law to civil unions and domestic partnerships in light of Windsor. It is unclear how Windsor will affect gay couples that married in a state that permits same-sex marriage and have since moved to Illinois.

The Prop 8 Case

Decision: In Hollingsworth v. Perry, the Court “threw out the case on a technicality.” It ruled that the proponents of Proposition 8 in California did not have “standing” to appeal the case. (Courts require that the parties to a case have standing, or a personal interest in the result of the case, to be involved.) The Court thus avoided ruling on the underlying question of whether the U. S. Constitution bars a state from banning same-sex marriage.

Result: By striking down the appeals, the Court allowed the ruling of the federal district court in California to be the final decision in the matter. The lower court had held that Proposition 8, approved by California voters, was unconstitutional because it denied the equal protection rights of same-sex couples. Note that the Supreme Court did not either affirm or reverse the lower court’s decision. It simply found that no legitimate party to the case had asked the higher courts to reverse the district court.

In Illinois: The effect of the Hollingsworth decision is limited to residents of California, which may now resume allowing same-sex marriage. It has no direct impact on Illinois law. The original opinion of the lower court in this case, however, contains broad language holding that same-sex marriage bans are unconstitutional. It can now be used as a precedent by supporters of same-sex marriage in other cases.

What to Do Now

As the law in this area develops, one thing is clear—we have no idea how courts will decide what current provisions for “spouses” or “descendants” mean. The definition of marriage is changing. Assisted reproduction is being used more widely every day, meaning that we do not know who will be treated as one of your descendants in the future. The shifting definition of spouses makes this even less clear.

We recommend that clients consider their intentions on these issues and then have their wills and trusts revised to express those intentions. This is essential if the client’s intent is to be carried out and if the family is to avoid possible fights in court over the meaning of a will or trust. ■



Charles F. (Monty) Newlin practices with the firm of Harrison & Held and can be reached at