The term "marriage" as it is used throughout the law, whether in statutes, administrative or court rule, policy, common law or any other source of civil or criminal law will now include marriage and civil unions between same-sex couples. Further, partners joined in a civil union will be responsible for the support of one another in the same manner as stated by the law for heterosexual couples in a traditional marriage.
All of Illinois’ law concerning domestic relations, probate, and family law will now apply to civil unions. With this in mind, should a couple decide to split (divorce), the same procedures, rights and obligations that are involved in the dissolution of a marriage will apply.
Illinois LGBT couples in a Civil Union will have new rights and responsibilities regarding the control, division and disposition of property in case of a breakup or divorce. The rights relating to inheritance, Probate, and others will apply. In divorce proceedings, the responsibilities of child custody, support payments or spousal support, will be the same as a married couple. Premarital agreements are just as valid as the right to bring a wrongful death action. All marriage law will apply to the benefit of exemption of real property from creditors by owning a house as tenants by the entities. It means, if one dies, the survivor takes the whole estate. Under the new of Civil Union laws, if one of the partners dies, the living spouse has the right to the property even without a will.
What does all of that mean to Illinois LGBT couples? Under the new law couples will have the right to recover damages from for your spouse’s injury. You have the right to enter hospitals as family member, and participate in medical or economic decisions in case of disability or long term illness. Civil Union partners also have visitation rights to jails, and to restricted places that says "immediate family." Couples will have the right to live in neighborhoods zoned "family only," and obtain health/dental insurance, bereavement leave, and other employer benefits.
Now that the legal rights are available for those who want to engage in a civil union, the question becomes, “Should you?”
Before entering into one, it is important for low-income individuals to consider the impact their civil union may have on their public benefits. Because the Civil Union Act is a state law, the changes will be primarily in state programs. But since it’s not always clear which programs are state and which are federal, review first the main public benefits programs, especially those accessed by people with HIV to determine what effect, if any, the new law will have on them.
Don’t ignore the need to have current Power of Attorney. Having a civil union does not remove the need to have a current one. Effective July 1, 2011, the new Illinois Power of Attorney Act went into effect. The new law has changes, new forms and new legal obligations.
Although the new law states that the old forms are valid, banks and other institutions, may refuse to honor them. An “old” power of attorney is more difficult to deal with than a new one because questions may arise as to whether it is still good or has it been replaced. Consult with your attorney to determine if your power of attorney needs to be replaced with a new one.
Since 1990 married couples in Illinois have enjoyed the option of owning their Illinois marital home as tenants. Now LGBT couples who enter into a civil union can also have the same right to hold title to real estate as tenants by the entirety. Tenancy by the entirety combines the survivor-ship attributes of joint tenancy with the bonus of limited protection against creditors. That is, a judgment creditor of just one of the homeowners can not enforce its lien against the residence of the homeowners owned as tenants by the entirety. This means that if you enter into a Civil Union in Illinois and sign and record a new deed conveying the title of your house, which has to be your residence, to yourselves, as tenants by the entirety, the creditors of one of you cannot take away the house. This is the greatest protection for your home.
A creditor may evoke the tenancy when the intention is to avoid the payment of debts existing at the time of the transfer. There is no protectionwhatsoever, and both owners are liable to pay the debt. The protection only applies to your main residence, where you live, and not to a vacation house or a vacant real estate such as farmland.
Civil Unions should not be taken lightly. Because this subject involves considerable legal and tax consequences, one should first consult with their attorney. Before you leap – consider how will this benefit or adversely affect your personal,financial and estate planning.
This material is for informational purposes only and subject to the unique needs of each individual. As laws differ from state to state please check the laws in your state AND please consult your own attorney for specific answers to your individual needs and situation. A consultation with your attorney can answer questions for your individual rights for any of the matters raised in this article.
Roger V. McCaffrey-Boss, Esq. is a graduate of Hamlin University School of Law in St. Paul Minnesota. As a member of the Chicago Bar Association and LAGBAC., Mr. McCaffrey-Boss, has provided legal services and support to Chicago’s LGBT community for over 34 years. You may contact him at firstname.lastname@example.org or 312-263-8800.