Are Civil Unions the Same as Same-Sex Marriage in Disguise?

Dennis S. Nudo

The answer to the above question is simply stated: No! While civil unions have many of the same legal characteristics rights and obligations), the civil union relationship is not recognized under federal law. This is particularly significant in the context of estate planning. That is, the deductions and credits for federal estate tax that are available to married couples are not available to participants in civil unions.

Procedurally, there are some similarities between entering into a civil union as compared to entering into a marriage. In both instances the participants must obtain a license from the County Clerk’s office. The application requests basic information about the parties such as their names, sex, occupation, address, Social Security number, dates of birth and places of birth, as well as the names and addresses of the parents or guardians of the participants. The participants must also state whether or not they are related to each other and, if so, how are they so related. Parties cannot enter into a civil union if their relationship is that of parent, grandparent, uncle, aunt, niece, nephew, first cousin, brother, sister, child or grandchild-whether by full-blood, half-blood or adoption. In every other respect this relationship is available to parties of the same-sex as well as parties of the opposite sex.

Participants in a civil union must be at least 18 years of age or if they are 16 or 17 years old they can only obtain a license with parental consent. If either of the parties has been previously married they must present proof that the marriage is dissolved. In order to obtain a license both parties must appear before the County Clerk and have sufficient identification such as a current driver’s license or state issued photo identification. Both applicants must appear and sign the application in the presence of the County Clerk. In order to become official, the civil union must be certified. The civil union may be certified by a judge, a retired judge, the County Clerk and in counties having 2,000,000 or more residents, by a public official whose powers include solemnization of marriage. Civil unions can be certified by religious officials or any other public official whose powers include solemnization of marriage.

Under Illinois law, civil unions confer on the parties the legal obligation, responsibility, protections, and benefits extended to married spouses. But the same legal obligations, responsibilities, protections and benefits that are conferred upon the parties by Illinois law are not recognized under the federal law. Illinois will recognize same-sex marriages, civil unions or substantially similar legal relationships from other states. If such a relationship exists the parties may be required to provide proof of the relationship created out of state.

Parties that enter into a civil union in Illinois where the relationship later ends will be required to dissolve the relationship by a state court. The dissolution of this relationship can be dissolved by the courts of another state if the parties are then resident of that state. The dissolution of civil unions follows the same procedures and is subject to the same rights and obligations that are involved in the dissolution of marriages.

There are several areas where civil unions are substantially different than the marriage relationship. For instance, a prospective civil union partner cannot sponsor a party for immigration. The civil union partner is not entitled to health insurance and other benefits provided by the other civil union partner. Any insurance benefits provided to a civil union partner will be taxable under federal law unless the partner qualifies as a dependent  under federal income tax law. The parties to the civil union relationship cannot file jointly for federal income tax purposes. However, the partners to the civil union may file a joint Illinois state income tax return.

If a civil union partner dies without a will in the state of Illinois, the surviving partner will be entitled to the intestate distribution available to married couples. If a party to a civil union dies with a will, the surviving civil union partner has the right to renounce what is left to the surviving partner and if the deceased partner has no children the surviving partner will be entitled to fifty percent of the estate. If the deceased partner has children, then the surviving partner would be entitled to one third of the estate.

As you can see, there are great deal of similarities between civil unions and marriage as viewed in the context of the state Illinois) law. However, the benefits and obligations of parties seeking formal legal relationship will not be afforded all of the benefits of a married couple. The benefits afforded to married couples under the federal law are substantial both in the estate planning area and in the area of entitlements.

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