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.

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.

It’s easy to forget whom we’ve named as beneficiary of life insurance policies, especially when it’s been years since we took out the policy.  Who is named on your policies?   Be sure that it’s the person or persons you want to provide for if you die unexpectedly.  If no one is named, the proceeds will likely go into your estate and be distributed through the probate process.  This result may or may not be what you wanted.

The same is true for retirement benefits.  Check your plans and accounts to ensure that your beneficiaries are who you want them to be.

Unfortunately, there are many sources of retirement income that are structured to provide benefits based on federally-recognized marriages.  That is, no benefits are available to surviving unmarried partners or persons other than a federally-recognized spouse.  In these cases, life insurance or an annuity may be the best way to replace the safety net that retirement, survivor or accidental death benefits provide.

If you die without a will, the state of Illinois makes these decisions for you.  Property that you own in your own name will go to your legal heirs.  Who are they?  Usually these people are your spouse, your children, or, if you have neither, then your other closest relatives.

Same-sex partners are not considered to be legal heirs or relatives, and so are not legally entitled to inherit each other’s property without a will.  No matter how long you’ve been with your partner, no matter what your relationship is with your relatives, if you die without a will, your partner will not inherit your property.

A will allows you to make sure that your partner inherits your property when you die.