On January 31, Governor Pat Quinn signed into law the Illinois Religious Freedom Protection and Civil Union Act (the “Act”), effective June 1, 2011, which recognizes the members of a civil union in Illinois as having the same rights as the members of a “spousal relationship” under the law.
Specifically, 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 to spouses.” Additionally, the Act provides the procedures for application, license and certification for a civil union as well as recognition of civil unions or same sex marriages entered into in another state by providing that 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” will be recognized as a valid civil union.
For Estate Planning and inheritance purposes, the Act provides automatic inheritance for the surviving member of a civil union in which the deceased member failed to leave a Will. When an Illinois resident dies without a Will, the surviving spouse is generally entitled to all of the decedent’s assets if he or she did not leave any descendents or ½ of the decedent’s assets if he or she did leave descendants. Thus, prior to the Act, the survivor of an unmarried couple would not have been entitled to any portion of the decedent’s assets. However, beginning June 1st, the surviving member of an Illinois civil union will be entitled to these same automatic inheritance rights as well.
The Act also provides equal Estate Tax treatment for members of a civil union, which means that the survivor will benefit from the unlimited marital deduction for transfers of property at death from one spouse to another. However, while the Act provides for beneficial treatment under Illinois law, the Federal government has yet to recognize civil unions and, therefore, the same unlimited marital deduction would not be available to the survivor for Federal Estate Tax purposes. Additionally, the Act provides mutual guardianship priority and hospital visitation rights for members of a civil union.
As is the case with any new legislation, it remains to be seen how the legislature and judiciary will treat certain provisions in the Act. While the Act is a significant step towards equal rights for members of a civil union, due to the limitations imposed by Federal law and the laws of other states, a proper Estate Plan remains the best way to ensure that the individuals of your choice (1) will be the ones to make decisions on your behalf if you are unable to do so, (2) will have the rights to medical records and visitation and (3) will be entitled to inherit your estate as you provide.