LGBT

In this era of same sex marriages and Title VII protection, is there still a need to distinguish the legal issues facing the aging LGBTQ population? The short answer is yes. This guide has been prompted by the continued disparity between the health care of LGBTQ persons versus that of heterosexuals. Additionally, LGBTQ persons are less likely to be married and more likely to be ostracized from their families. Oftentimes, this family shunning leads to LGBTQ persons adopting their friends as their family. This pamphlet discusses the legal measures that need to be formalized to recognize these important relationships both in life and after your passing.

Health Care

A power of attorney for health care is important if you want to be able to select the person making medical decisions and advocating on your behalf should you lose the capacity to do so. Additionally, a power of attorney for health care can ensure that your partner or close friend has the same access to your medical information as you, regardless of the health care provider’s prejudices. Illinois provides for a power of attorney for health care under chapter 755 of the Illinois Compiled Statutes. The statutory form provides its users with the ability to name their own health care agent and the agent’s successor. Furthermore, the form allows its author to identify their wishes regarding health care and end of life decisions. Additional information regarding power of attorney for health care can be found in the Illinois State Bar Association pamphlet titled Your Guide to Your Health Care.

It should be noted that a power of attorney for health care has limitations when it comes to some mental health care treatment. These limitations are triggered by the fact that mental health treatment can fall under the protection of the Illinois Mental Health and Developmental Disabilities Act. Thus, there are different protections in place for non-consenting persons under this act. Illinois does have a form that a person of sound mind can execute to set out their wishes for mental health treatment. In that form, there is a section where you can fill in the name of the person to speak on your behalf in case you lose the capacity to make informed decisions or act as your “attorney-in-fact.”

If you have not executed a power of attorney for health care and you lose the capacity to make your own informed health care decisions, your medical service providers will turn to a health care surrogate. Illinois sets out a statutory order for those persons that should be named your health care surrogate. The order is as follows: a health care guardian, a spouse, an adult son or daughter, a parent, a brother or sister, an adult grandchild, and then finally a close friend of the patient. Thus, if you lose the capacity to make health care decisions, all of the aforementioned relatives will be allowed to make those decisions before your close friend or partner. Unfortunately, oftentimes these relative health care surrogates are given the authority to dictate what visitors you are allowed.

Instead of a power of attorney, many individuals think they need a living will. A living will can be used to dictate what measures you want in place for life sustaining treatment. But those same limitations can be set out in a power of attorney for health care and the agent named in the power of attorney can make sure your wishes are being observed. Furthermore, a living will does not name a person to act as your health care surrogate, so a health care surrogate will still need to be appointed for medical decisions not covered within the living will (e.g., placement in a residential facility).

Illinois also has a Practitioner Orders for Life Sustaining Treatment (POLST) form. A POLST allows a patient, with a serious illness, the opportunity to answer questions regarding their preferences for life sustaining treatment, while they are still able to make informed decisions. With the power of attorney for health care and POLST available, a living will shouldn’t be necessary unless you have no one you can trust to make your health care decisions or your power of attorney for health care lacks any specificity regarding life sustaining treatment and you’re afraid something will happen before given the opportunity to fill out a POLST.

Property

Just as you should be concerned about who is making health care decisions for you, you should also think about who will handle your financial matters if you are still alive but have lost the capacity to handle your finances. Joint accounts and joint titles allow the other party to have access to the account or title. Make sure you trust any person listed on your account or you limit the resources available to that person. Debts and assets that are not held jointly must be dealt with in another way.

Like the power of attorney for health care, Illinois also has a statutory power of attorney for property found in chapter 755 of the Illinois Compiled Statutes. This form is very powerful and can allow the agent to have unrestricted access to your assets and debts. But the form can also be used to restrict the amount of access given to your agent circumstances under which a person can become your property agent. It is important to note that this power of attorney terminates upon the death of the principal. After a person’s passing, the financial matters should be handled by the executor of the estate or that person holding the letters of administration to handle the estate. Powers of attorney are frequently included with the process of your estate planning. Please see the ISBA pamphlet titled Your Guide to Estate Planning for more information on powers of attorney and other estate planning matters.

Unlike Illinois’ Health Care Surrogate Act, there is no statutory authority to automatically have an agent appointed over your finances if you do not have a power of attorney for property. If you should lose the capacity to handle matters within your lifetime, a person seeking the right to assist you will have to go through the court system. Therefore, without any advance planning, a person that has lost their capacity to handle their finances can become the subject of an adult guardianship petition. These matters can become very messy and involve long lost relatives entering into the fray at the 11th hour. Guardians can be appointed by the court to handle both health care and property matters. But the court should not be able to appoint a guardian when the subject of the petition has executed a valid power of attorney and the agent is acting in the best interest of the principal. That’s why it is so important for any person not wanting to have a family member make decisions regarding their health care or finances to have valid powers of attorney executed. Additional information on guardianships in Illinois can be found in the Your Family section of the For the Public section of the website.  

Social Security and Marriage

There are a number of factors to consider when deciding whether to marry. A big consideration should be your future social security benefits. If you legally marry or enter into a legally recognized relationship (e.g., a state civil union), you automatically become eligible for a percentage of your spouse’s social security benefits, both in life and death depending on your own benefits or pension.

But what if you were previously married? If you were married for 10 years or more, but are currently divorced, you may be eligible for spousal benefits during the course of your ex-spouse’s life and even after death. If you remarry, you could lose those benefits as long as you remain married. At one time, the federal government did not recognize couples in civil unions. That is no longer the case. For all practical purposes, a civil union will be considered a marriage by the Illinois and federal governments. So, both a civil union and marriage will terminate your rights to a divorced spouse’s benefits.

However, the Social Security webpage sets out that if you re-marry after the age of 60, it should not affect receiving your survivor benefits from an ex-spouse upon their death. There are a lot of factors that are at work in determining when and if you will get social security benefits at your or your spouse’s retirement age. Make sure you are aware of the repercussions of entering into or dissolving a legal relationship before you take that big step.

Estate

Aside from these concerns facing the aging person in their lifetime, the reader should also give some thought to what will happen to their estate after they pass away. There is often a misconception that when a person dies without a will their estate goes to the state. This is not true in Illinois, unless the deceased owed a lot of money to the state. Just like the Health Care Surrogate Act, Illinois has legislation in place to dictate what happens to an estate when there is no valid will.

The Illinois intestacy statute sets out that first, just claims against the estate must be paid, but the remaining estate will pass first to one’s spouse and children. If there is no spouse, then everything goes to the deceased’s children. If there are no children, then the entire estate goes to the spouse. If there is no spouse or children, then the estate is spilt between the deceased’s parents and siblings. If there are no parents or siblings, then the estate would pass to grandparents, and so on. Only if there are no surviving relatives does the estate pass to the county.

In this long list of statutory heirs, you will notice no mention of domestic partners or close friends. This is a good reason for having a will drafted. Although a will does not guarantee that an estate won’t go through probate, it does guarantee that the people who are the closest to you and most worthy will be the persons that inherit your estate. A will would also enable the estate owner to nominate who they want handling their estate after their passing. Furthermore, you can speak with an attorney about possible measures that you can take in your lifetime to reduce the tax and probate consequences that come with your estate. Please see the ISBA’s Your Guide to Estate Planning for further information on this important topic.

Prepared by the Illinois State Bar Association's Standing Committee on Sexual Orientation and Gender Identity (2024)

Discrimination and employment issues

This pamphlet briefly describes some of your rights under Illinois law. No pamphlet can tell you everything you need to know about your rights. You should contact a licensed attorney to learn more.

Am I protected if I am discriminated against because of my sexual orientation or gender identity?

Yes. The Illinois Human Rights Act protects against discrimination in employment, housing, financial credit, and public accommodations, as well as sexual harassment in employment and higher education. The Act prohibits discrimination based on someone's actual or perceived sexual orientation, which is defined to include heterosexuality, homosexuality, bisexuality, and gender-related identity. If you feel that you have been a victim of discrimination or sexual harassment, you should talk to a lawyer about filing a charge with the Illinois Department of Human Rights. It is also a violation of the Act to retaliate against you if you file a charge of discrimination.

Some cities and counties in Illinois also have local human rights ordinances that protect from specific acts of discrimination based on sexual orientation or gender identity. In some cases, you may also be protected at work by rights in an employee handbook, by the company's non-discrimination policy, or (if you are a union member) by a collective bargaining agreement between the union and your company. Ask your human resources department or union representative for a copy of any policies or programs.

What if I am sexually harassed at work?

You should consider seeking redress from: (1) your employer; and (2) the Illinois Department of Human Rights and the Equal Employment Opportunity Commission.

Seeking Redress from Your Employer

Many companies have established policies on sexual harassment. Look in the employee handbook or on the company website, or ask for a copy of the policy from the human resources department. Larger companies may have hotlines to call. Even if there is no policy in place, you should still consider reporting the harassment. If the harassment is from a coworker, your employer may not be held responsible until it knows (or should have known) about the harassment and fails to take corrective measures. No matter whom you talk to or call, write down the date and time of each conversation or attempted call, the name of the person with whom you spoke, and what each of you said during the conversation.

Seeking Redress from State and Federal Agencies

The laws that protect you from sexual harassment have deadlines for filing charges with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission, typically 180 days from the date of the alleged discrimination. Depending on where you live, there may be other local government agencies that can provide additional protection. Sexual harassment is not just sexual conduct or requests for sexual favors.

Unlawful sexual harassment may include harassment by your employer or coworker because you might not look or act in a way that conforms to their stereotypes of how men and women should look or act

Marriage and family issues

Can I marry my same-sex partner?

Yes. Same-sex marriage has been legally recognized in Illinois since June 2014. Additionally, in June 2015, the United States Supreme Court ruled that state-level bans on same-sex marriage were unconstitutional. As a result, all states are required to issue marriage licenses to same-sex couples and to recognize same-sex marriages performed in other jurisdictions. Furthermore, same-sex couples that are legally married are now treated the same under both federal and state law as opposite-sex married couples. For example, the US Department of the Treasury and the IRS now recognize any couple, whether same-sex or opposite-sex, that has been legally issued a marriage license in any state as married for federal tax purposes. This means that same-sex married couples can now file taxes jointly and benefit from applicable marriage tax exemptions, among other things.

Prior to the legal recognition of same-sex marriage in 2014, Illinois enacted a law allowing any couple to enter into a civil union beginning June 2011, which entitled the couple to all of the rights, benefits, burdens, and obligations afforded to spouses under all of Illinois law. The enactment of the Illinois law that legalized same-sex marriage did not dissolve or nullify civil unions. Couples who entered into a civil union prior to the legalization of same-sex marriage can convert their civil unions to marriages by applying for a marriage license and having a marriage ceremony within 60 days of application. This conversion to marriage is not required, however, and for those couples that choose not to convert, their civil unions will remain legally recognized as valid. Furthermore, both same-sex and opposite-sex couples can still enter into a civil union as opposed to getting married if they so choose. If two people in a civil union do get married, their civil union will cease to exist and their marriage will begin as of the date on their marriage certificate.

Can I adopt children?

A person can adopt children as a single parent under Illinois law regardless of sexual orientation. Additionally, Illinois has long permitted unmarried same-sex couples to jointly petition for adoption. Same-sex couples that are married or in civil unions may also adopt children, but they must do so jointly under Illinois law. In other words, unless the couple has been living separate and apart for 12 months or longer, spouses or civil union partners must jointly file the petition for adoption. When the court grants an adoption to a couple jointly, the names of both parents (regardless of gender) will appear on the new birth certificate.

Things get a little more complicated when only one party is the legal parent of the child. Illinois will not recognize rights to a child (such as access, visitation, custody, or any other right of parentage) without parentage. Where one party does not establish legal parentage, and the couple later breaks up, that person has no legal or de facto rights to the child. Illinois law therefore allows a person to legally adopt his or her partner's legal (biological or adoptive) child through a process called second-parent (or co-parent) adoption, giving him or her the same legal rights as the other parent. If a same-sex couple is not married or in a civil union, the non-legal partner must adopt the child in order to have full legal rights as a parent. Illinois law presumes that both spouses are the legal parents of a child born into a marriage, so while it would seem that both same-sex married couples and those in a civil union (since the Illinois Civil Union Act equates civil unions to marriages) would have this presumption of parentage, it has not been explicitly guaranteed under Illinois law as of now. As a result, some attorneys might still recommend second-parent adoptions for these couples in order to ensure both parents have full legal rights, especially since judgments of adoption are guaranteed full faith and credit under the U.S. Constitution, which means they are recognized in every state even if that state's own law would not have allowed the adoption. If you are unsure of your parental rights under Illinois law or are considering having or adopting a child with your spouse or partner, you should consult an experienced attorney for advice regarding your particular situation.

Some same-sex couples have considered surrogacy arrangements to bring a child into their relationship. Although surrogacy may seem ideal where a family member or close friend is willing to help, surrogacy arrangements are always complex. The Illinois Gestational Surrogacy Act does not expressly contemplate that a same-sex couple would seek a gestational surrogacy agreement, but this may not be an issue if the parties are married or have a civil union. If you are considering such a surrogacy arrangement, it is crucial to speak to an attorney knowledgeable in artificial reproductive technology and surrogacy.

What happens when same-sex couples split up?

Legally married same-sex married couples can pursue the same avenues that opposite-sex married couples can to obtain legal recognition of their separation (i.e., legal separation or divorce). Same-sex couples filing a petition for dissolution of marriage should follow the traditional divorce procedures, and as such, will be afforded all the rights and protections under Illinois law, including, for example, the rights to division of all property acquired during the union (or foreign marriage or substantially similar legal relationship), to maintenance or spousal support (formerly known as alimony), custody, child support, attorneys fees, and the like. Civil unions also follow the same procedures for divorce and legal separation as marriages under the Illinois Civil Union Act. Regardless of where it was obtained, same-sex couples can file for divorce or legal separation in Illinois so long as one of the parties is a resident of Illinois and has been so for 90 continuous days prior to filing.

Violence

What if I am the victim of a hate crime?

Sexual orientation is a protected category under the Illinois Hate Crimes Act and includes actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity. A person can be charged with a hate crime when, because of the actual or perceived sexual orienta tion of another individual or group of individuals, he or she commits assault, battery, aggravated assault, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle or to real property, mob action, disorderly conduct, or harassment by phone or through electronic communications. Any hate crime is punishable with criminal prosecution and remedies, including restitution paid to the victim. Even if a crime is not charged as a hate crime, crimes committed because of a victim's sexual orientation may be subject to greater penalties under Illinois law. You can also pursue a civil action for hate crime and seek damages, attorneys' fees, and other relief.

What if I am the victim of domestic violence?

The Illinois Domestic Violence Act permits a person abused or harassed by a family or household member to petition the court for an order of protection, regardless of the sexual orientation, marital status, or gender identity of the parties involved. If you are living with or even dating someone who is abusing you, you may seek protection under the Act. Conduct that will support an order of protection includes physical abuse, threats of violence, harassment at your home or workplace, financial exploitation, and stalking. An order of protection may include provisions aimed at protecting you from further harm, i.e. requiring the abuser to stay a certain distance away from you at all times, prohibiting the abuser from committing any other acts of abuse or neglect, removing the abuser from a shared residence, requiring the abuser to undergo counseling, prohibiting the abuser from possessing a firearm, and providing for the care, possession, and visitation of minor children. To obtain an order of protection, you will have to describe in writing the abuse or harassment you experienced and its impact, attend a court hearing, and possibly testify in court. In emergencies, orders of protection can be granted without the abuser being present. Illinois has created a uniform, statewide Petition for Order of Protection. Some counties, such as DuPage County, have even created an online program to file Petitions for Orders of Protection. Violations of protective orders are subject to criminal and civil penalties.

Prepared by the Illinois State Bar Association's Standing Committee on Sexual Orientation and Gender (2016)