Taxation & Estate Planning

Illinois Civil Unions: An Introduction with Q&A

By Joel A. Schoenmeyer

The Illinois House of Representatives and Senate have both voted to pass the Illinois Religious Freedom Protection and Civil Union Act (the "Act"), and Governor Quinn will sign the Act into law. It becomes effective July 1, 2011. You can view the full text of the Act here.

The big news, of course, is that the Act allows for the creation of civil unions between same-sex couples. The Act obviously relates to probate and estate planning, but in this post, I just wanted to present an overview of the Act and how it works. (I'll get to the probate and estate planning ramifications very soon.)

What are the purposes of the Act? There are two (set forth in Section 5 of the Act): to set forth procedures for obtaining a certificate of civil union, and to give parties to a civil union all the benefits (and responsibilities) of married people under Illinois law.

Can anyone enter into a civil union? Not necessarily. Section 25 prohibits certain people from entering into a civil union. Basically, you can't enter into a civil union if you:

1. Are already married or already a party to another civil union;
2. Are under age 18 (or seeking to enter into a civil union with someone under age 18); or
3. Are seeking a civil union with a family member (an ancestor, a descendant, a sibling, first cousin, aunt, uncle, niece or nephew).

Two notes here:

?Half-blood or adopted status doesn't matter (you can't enter into a civil union with your brother, even if he was adopted or has a different mother from you)

?While civil unions are intended to give same-sex couples the same rights as heterosexual couples, you don't have to be a same-sex couple in order to enter into a civil union. [Edit: Interestingly enough, Andrew Sullivan mentions this provision in his post here, and states that the Act "offers marriage-lite, undermining heterosexual marriage in a far more profound way than marriage equality ever would."]

So how do I actually get my certificate of civil union?You have to follow the procedures in Sections 30, 35 and 40 of the Act. Basically:

1. You present a completed and signed application form (which we don't yet have from the Illinois Director of Public Health) to the county clerk's office. Note that there's a fee (also unknown), and both parties must be present.
2. A license and certificate of civil union will be issued. The license is good for 60 days, beginning on the day after it was issued.
3. The civil union is performed (see below).
4. You (or the person performing the civil union) return the certificate to the county clerk's office within 10 days after the civil union is performed.

Who can perform/certify a civil union?
?a judge of a court of record;
?a retired judge of a court of record, unless the retired judge was removed from office by the Judicial Inquiry Board;
?a judge of the Court of Claims;
?the Cook County Clerk;
?a public official whose powers include solemnization of marriages; or
?an officiant acting in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group (as long as the officiant is in good standing).

I was married in a state that allows same-sex marriage, and am moving to Illinois. What's my status? Under Section 60 of the Act, "[a] marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction" is recognized as a valid Illinois civil union.

How do I terminate a civil union? The same way you terminate a marriage, according to Sections 45 and 50 of the Act. The Illinois Marriage and Dissolution of Marriage Act and Civil Practice Law apply to civil unions.

Full post as published by Death and Taxes Blog on December 02, 2010 (boomark / email).