Illinois Same-Sex Marriage Law Now In Effect Statewide
On November 20, 2013, Illinois Governor Pat Quinn signed a law legalizing same-sex marriage in Illinois. While some counties began implementing the law prior to its effective date, the law went into full effect on June 1, 2014. After several years of failing to pass similar legislation, this legislative accomplishment followed on the heels of the Windsor Supreme Court decision issued last June. Same-sex Illinois couples can now marry and enjoy all of the benefits and responsibilities of marriage at the state level, and due to Windsor, at the federal level as well.
Prior to full recognition of same-sex marriage, Illinois, as of June 1, 2011, allowed both same-sex and opposite-sex couples to enter into civil unions. Illinois civil unions are the equivalent of marriage for Illinois law purposes, but (as was made clear in post-Windsor IRS regulations) are generally ignored for federal law purposes. This dichotomy created extreme legal complexity and uncertainty along with undesirable tax consequences for some.
Despite the availability of marriage for all, the civil union law will remain in effect and continue to serve as an alternative option for all Illinois couples going forward.
Conversion from civil union to marriage
For same-sex couples already in a civil union, conversion from civil union to marriage will be allowed but not required. Many couples will choose to convert their civil union into a federally recognized marriage, though some may not.
For those wishing to convert from civil union to marriage, timing can be critical. If the civil union to marriage conversion is completed within one year from June 1, 2014, then:
- the conversion is exempt from paying any fee;
- it may be performed with or without a ceremony; and
- the date of the marriage can be retroactively recorded as the date of the original civil union.
That last point is critical. Retroactive marital recognition may create an opportunity for some to elect to amend past tax returns based on marital status and to qualify for some federal benefits.
Couples who wait longer than a year may still convert after June 1, 2015, but they will be required to pay a fee, perform a new ceremony and the retroactive status will not apply.
Estate planning is critical
A change in marital status is always an important trigger to review or create an estate plan. Spouses share a legal relationship and set of responsibilities that no other relationship has. Wills should be written in such a way that takes into account the special rights that a spouse is afforded. Beneficiary designations can sometimes be restricted. And the use of the marital deduction requires careful and thoughtful planning to minimize estate taxes.
It might also be worth revisiting the definition of a spouse within estate planning documents. Is the written intent still clear and appropriate?
Powers of attorney for property, health care and end of life issues should be reconsidered as well heading into marriage.
How we can help
We assist clients with their estate plans for all types of relationships and personal situations. We believe that everyone can benefit from a well-considered estate plan tailored to your personal situation, goals and wishes.
For more information, please review our Illinois estate planning library.