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Same-Sex Love and the Law in Illinois

Torie McMillan Photography

Torie McMillan Photography

By Leslie A. Gutierrez

They meet. They fall in love. They get married. They live happily ever after. It’s supposed to be that simple. Unfortunately, it’s only that simple if you fall in love with someone of the opposite sex. In which case, the abundance of rights, privileges and benefits that stem from that love and unity are merely an afterthought. For same-sex couples, however, once you reach that “I love you, I need you, I want to be with you forever” moment, there are significant legal decisions to consider, which, if ignored, can sometimes have devastating consequences. This article is intended to guide those same-sex couples who are ready to commit to each other for the rest of their lives but don’t know what to do next, and especially for those same-sex couples that have been together for many years but have done nothing to solidify their relationship in the eyes of the law.

Getting an Illinois Civil Union (or Marriage)

“Entering into a civil union” does not exactly evoke the same romantic and starry-eyed sentiments as “getting married.” This is exactly why, only several months after civil unions became effective in Illinois, our inspiring legislators began their renewed push for same-sex marriage in Illinois. And if you have been paying attention to local news lately, you’re aware that our advocates in the Illinois General Assembly are getting awfully close to making Illinois the eleventh state to recognize same-sex marriage. However, there are still hurdles to overcome to make this a reality, which is why I urge you to pledge your support for same-sex marriage by contacting your legislators to voice your opinion on the issue (it’s simple, just click here). For more information on how you can help push the passage of the “Illinois Religious Freedom and Marriage Fairness Act,” visit Equality Illinois’ website at www.eqil.org.

Although we are on the cusp of achieving marriage equality in Illinois, I would not recommend devoted same-sex couples to take the “wait and see” approach to formalizing their relationship. Instead, I would urge those couples to at least consider some of the rights, privileges, and protections that flow from entering into a registered civil union (which will be equally applicable when Illinois recognizes same-sex marriage).

The passage of the Illinois Religious Freedom Protection and Civil Union Act changed the relationship dynamics for same-sex couples in Illinois. Section 20 of the Act states that “a party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law.” This is a powerful clause that effectuates a powerful change in the rights of same-sex couples in Illinois. For example, partners in a civil union now have the right to jointly adopt a child, to receive a share of his or her partner’s estate if that partner did not execute a will, to be first in line to make decisions for his or her partner if that partner becomes incapacitated, and to hold real property in “tenancy by the entirety” (which provides certain protections against creditors), to name a small few. So, if these things matter to you and the person you are determined to share your life with, then do it: enter into a civil union (or get married when that is an option). The process is simple – (1) obtain a license from the county clerk (which becomes effective one day after its issuance and expires within 60 days); (2) pay the fee of approximately $60; (3) exchange vows before a judge, a retired judge, or a secular or willing religious official; and (4) register the civil union by having the certificate completed and forwarded it to the county clerk within ten days. For more information about this process, visit your County Clerk’s website. By taking these simple steps, you are providing you and your partner immediate protection as a couple at a time when the recognition of our relationships nationwide is murky at best.

Notwithstanding the foregoing protections that a civil union will provide, an Illinois civil union is not equivalent to a marriage (nor will Illinois same-sex marriages be equivalent to opposite-sex marriages on a national level). The sad reality is that your civil union will not be recognized by the federal government and will not be recognized in the majority of states that do not allow same-sex marriages or some other similar institution. This may change soon too with the Supreme Court set to hear oral arguments in the case challenging the Defense of Marriage Act this spring. But again, this should not convince you and your partner to just wait it out. If you ever have to move across state lines or you find yourself in an emergency situation in a less LGBT-friendly state, your civil union registration (or your potential Illinois same-sex marriage) will not provide you with the same full protection afforded to opposite-sex married couples. Some states simply will not recognize your Illinois civil union or same-sex marriage. Therefore, some basic estate planning tools should also be utilized to fill in some of these gaps.

Doing Basic Estate Planning

Regardless of whether you are civilly united or married in Illinois, all same-sex couples should execute powers of attorney (See why: http://www.advocate.com/health/2012/08/21/lesbian-couple-face-discrimination-nevada-hospital). A power of attorney (“POA”) is a document which grants another individual (the “agent”) the power to make decisions for you (the “principal”) in the event that you become physically or mentally incapacitated. There are two main types of POAs: a POA for health care and a POA for property. If you ever become incapable of making your own health care decisions, someone else must be designated as your health-care decision maker. If you have not executed a power of attorney for healthcare, Illinois law provides a priority list of default decision-makers, which places one’s “spouse” at the top of the list behind an agent under the power of attorney for health care. Therefore, if you choose not to enter into a civil union with your partner, who would have the same rights as a “spouse” under Illinois law, but would like them to have the authority to make your health care decisions if you become incapacitated, you must execute a POA for health care. Furthermore, a power of attorney for property provides similar protections but with respect to your finances and property. A POA for property will grant your agent the authority to act on your behalf in various financial transactions that you can specify. Illinois law does not require that an attorney prepare a POA, but the documents must be signed by the principal and a witness (POAs for property also need to be notarized). Sample POA forms for health care and property can be found on the Illinois Guardianship and Advocacy Commission’s website located at http://www.gac.state.il.us/forms.html.

In addition to executing POAs, it is also advisable that you consider executing a Will and/or Trust. This is especially true for couples who choose not to enter into a civil union. While civilly united couples will be able to enjoy numerous default protections under the Illinois Probate Act if they choose not to execute a Will, the best way for you to ensure your property passes according to your wishes is to execute a Will. If the value and size of your estate is relatively small, all you may need is a simple Will, which can be completed through a website such as LegalZoom, a legal aid clinic, or by an attorney for a flat fee (average between $1250-$1500). If the value of your estate is large or you have very specific and detailed wishes for the distribution of your estate, the execution of a trust may also be a necessary estate planning tool. For purposes of creating a trust and/or for complex estate planning, it is strongly advisable that you seek the assistance of a licensed attorney.

As a community, we are inching closer and closer to achieving full marriage equality in Illinois and on a national level. Nonetheless, until that day comes, it is imperative that you take the steps necessary to legally protect yourself, your partner, and your relationship.

Leslie A. Gutierrez
LeslieLeslie Gutierrez is an Associate with the Litigation Practice Group at Clark Hill. Leslie practices general litigation, with a focus on commercial litigation, trust and estate litigation and administration, and real estate matters. Leslie earned her degrees from the University of Michigan and the Loyola University Chicago School of Law.
Email: LGutierrez@clarkhill.com

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