Earlier this year, Governor Pat Quinn signed the Illinois Religious Freedom Protection and Civil Union Act (the “Civil Union Act”). Beginning June 1, 2011, for the first time in Illinois’ history, two individuals will be able to enter a civil union. As defined by the Civil Union Act, a civil union is a legal relationship between two persons, of either the same or opposite sex, that gives a couple access to the same state-created rights and obligations as a civil marriage couple. Illinois is only the sixth state to enact a civil union statute or similar law. It is critical for couples who contemplate entering into a civil union to fully understand the associated protections and responsibilities.
The Civil Union Act ensures that all persons entering into a civil union receive the same legal obligations, responsibilities, protections, and benefits of married couples. One of the most important implications of the Civil Union Act from an estate planning perspective can be found in the expanded definition of “spouse” in the Health Care Surrogate Act. In the absence of a Power of Attorney for Health Care, the Illinois Health Care Surrogate Act designates various classes of individuals, in a determined order, who have the right to make health care decisions for a patient that lacks decision-making capacity. Before the Illinois Civil Union Act, an unmarried partner would be included in the “close friend” class, which is the seventh category. The Civil Union Act raises the civil union partner to the same level as a patient’s spouse, which is the second category.
The Illinois Civil Union Act also gives the civil union partners all of the protections afforded to spouses under the Illinois Probate Act. For example, if an individual who enters into a civil union dies without a Will, the surviving partner is now entitled to the same proportional share of the deceased partner’s estate as would be awarded to a surviving spouse in a traditional marriage. Prior to the enactment of the Civil Union Act, in the absence of a Will, a surviving partner had no right to the deceased partner’s estate. The surviving partner now also has the right to petition for a spousal award, receive a statutory share and contest the deceased partner’s Will.
In addition to the spousal rights provided to civil union partners, the Civil Union Act incorporates the Illinois Marriage and Dissolution of Marriage Act for couples who wish to terminate their civil unions. Consequently, upon “divorce” a civil union partner may be forced to pay maintenance and/or support, participate in child custody issues, and subject his or her property to division between the partners. As a result, a pre-civil union agreement (similar to a prenuptial agreement) setting forth the partners’ rights and obligations upon death and “divorce” should be discussed and considered.
Widowed senior citizens may also take advantage of the Civil Union Act. Many older couples choose not to remarry because of the potential loss of pension or social security benefits. The ability to enter into a civil union partnership may provide the perfect solution to the couple’s dilemma. Civil union partnerships allow these seniors to memorialize their commitment to each other and secure the legal rights of a spouse pursuant to Illinois law while maintaining their retirement income (governed by federal law), because, as of today, there is no federal civil union statute.
The consequences of entering into an Illinois civil union should be closely examined. Couples who enter into a civil union substantially strengthen their legal rights pursuant to Illinois law, however, as with couples in a conventional marriage, we strongly encourage civil union partners to not rely on state imposed rights but instead to work with a lawyer and develop a personalized estate plan. As with other life-changing events, such as divorce or the birth of a child, the consideration of entering into a civil union may be the signal to schedule a consultation with your estate planning attorney.
