The Illinois Marriage and Dissolution of Marriage Act states that “a marriage between 2 individuals of the same sex” is prohibited.   750 ILCS 5/212(5).   The Act goes a step further in declaring that “A marriage between 2 individuals of the same sex is contrary to the public policy of this State.”  750 ILCS 5/213.1.   Finally, the Act provides that “if any person residing and intending to continue to reside in [Illinois] shall go to another state or country”, and obtains a prohibited marriage, that marriage will be declared “null and void for all purposes in [Illinois] with the same effect as though such prohibited marriage has been entered into in [Illinois].”  750 ILCS 5/216.

Other governmental entities in Illinois allow individuals to register as “domestic partners.”  While this doesn’t give the couple any legal rights, it does give them the opportunity to formally recognize their relationship and provides a basis for some employers to provide employment benefits to the partner of the employee.

How can same-sex couples protect each other and their families?  They have to be proactive.  They need to seek legal advice and create effective solutions that will legalize their relationship to the greatest extent possible. Some of the keys to such a plan are: financial powers of attorney, medical powers of attorney, partnership agreements, wills and trusts.

Engelhard, a 10-year veteran of the Missouri State Highway Patrol, was killed last December after getting out of his patrol car to place flares at the scene of a traffic accident.  Under Missouri state pension rules, if a trooper dies in the line of duty, his or her spouse is eligible for lifetime survivor benefits.   For Engelhard, that would have been more than $28,000 a year.

Missouri pension law is clear about who is a spouse.  In 2004 Missouri voters approved a constitutional amendment banning same-sex marriage.  Neither the state Highway Patrol pension system nor Missouri law recognizes domestic partners.

Although the unmarried partner of a heterosexual trooper would also not be eligible for survivor pension benefits, that couple would have had the option of getting married.   An option not available to Engelhard and Glossip.

Illinois, a bill, SB 2822, has recently been introduced that would amend the state pension code to allow a designated domestic partner to qualify as a surviving spouse for purposes of survivor and death benefits.  The bill defines a domestic partner as a person of the same gender as the unmarried pension participant who:

• is at least 18 years old
• is involved with the participant in a long-term relationship
• has resided witht he participant at the same address for at least 12 months
• is not a close blood relative of the participant
• is not married to another person
• has an exclusive mutual commitment to the participant in which they agree to be jointly responsible for each other’s common welfare and to share financial obligations.

Why own as joint tenants rather than just leaving the house to your partner in your will?  Even if you die with a will, your relatives (“legal heirs”) may go to court to challenge the will.  This has happened all too often to LGBT people.  Ownership in joint tenancy means that the surviving joint tenant immediately becomes the owner of the home when you die.  This is called a Right of Survivorship.

The main advantage of joint tenancy is the automatic transfer of ownership when one of the joint tenants dies.  A home in joint tenancy does not have to go through the probate estate of the person who died.

A word of caution:  property held in joint tenancy can be affected by several types of taxes, including federal and state income taxes, estate taxes and gift taxes.  Tax laws change often.  Carefully consider tax laws when deciding how to title your home or other property.

As always, consult an attorney or financial planner.

For LGBT persons, a will is not optional.   Dying without a will guarantees that your property will be automatically distributed to your legal heirs, as defined by the law of Illinois, if you’re an Illinois resident, or your state.  The Illinois statute is here.

Who are legal heirs?

• They are your family of origin – children, parents, brothers and sisters.  If you have none, then your closest relatives are your legal heirs.
• A same-sex partner or spouse is not a legal heir (with the exception of a few states where the marriage, civil union or domestic partnership laws recognize the right of a same-sex partner to inherit.)
• No matter how long you’ve been with your partner, no matter what your relationship is with your family of origin – if you die without a will, your property will go to your legal heirs as defined by the law of the state in which you live.

A last will and testament can accomplish several important things, including:

• naming your partner or a close friend as guardian of your minor children;
• spelling out your burial wishes;
• clarifying your intention to provide for your same-sex partner or close friend or a charity;
• naming your partner as executor of your estate.

If you anticipate a will challenge or hostile family members, you need to take even greater precautions in drafting your will.

It is far less expensive, financially and emotionally, to plan now to make sure that your property goes to the people or charities you choose.  Remember, every state has different legal rules for creating a valid will.  Prepackaged forms are often incorrect or out-of-date or just don’t fit your situation.   Have an experienced, knowledgeable attorney who is familiar with the laws in your state and the issues faced by LGBT persons help you draft your will and life planning documents.

Think of the what matters most:

• Who will make medical decisions for you if you are unable to do so for yourself?
• Who will make financial decisions for you if you become incapacitated?
• What will happen if your partner and you break up?
• Who will care for your children if something happens to you?
• Who will inherit your belongings when you die?
• Who will see to it that your wishes for your funeral arrangements are carried out?

The reality is that current Illinois law has several barriers between you and the person you may want to be by your side or provided for if something happens to you.    Creating a Life Plan Toolbox now will protect you and the ones you love.

These are the basic tools that should be in your Toolbox:

• Medical Power of Attorney
• Financial Power of Attorney
• A Living Will
• Beneficiary Designations for life insurance policies or retirement plans
• A Will
• Real Estate Ownership Arrangements
• Second-Parent Adoption

I’ll discuss each of these tools in more detail in coming posts.