Please Read – Disclaimer: Because this is such a sensitive topic to some of my readers, I want to clarify that the intent of this blog inform you of the current laws so that you know where to get more information and know what options you or your loved ones (or your clients) have under current Colorado and Federal law. Check with your attorney for guidance on your particular situation. This post introduces some key concepts and resources–and does NOT provide either legal advice or counsel. The laws are changing almost daily so this blog may even be outdated by the time of publication!
Ericka Johnson’s clear and insightful presentation on “Civil Unions and Estate Planning” at the Feb. 14, 2014 Colorado Financial Planning Association meeting touches far more folks than I initially thought. Most of the audience was financial planners, many of whom had clients asking how their legal status impacts their estate planning decisions. Then I began to consider the following questions:
- Do you know any same-sex couples?
- Does your business serve any of these couples?
- Do any of your clients have connections with a same-sex couple who needs to know how their legal status impacts their long term planning?
I began to realize that all of us likely know someone who needs to know this information. So, do read on! Let me share some important facts relevant both for same-sex couples and unmarried couples. (Sorry hetero-marrieds—your situation is annoyingly straight-forward ; ) ).
Important Things to Know
What is a ‘civil union’? How does that differ from a same-sex marriage or traditional marriage?
With the passage of the Colorado Civil Unions Act, after May 1, 2013 civil union licenses provide same-sex or opposite-sex couples with all the benefits, protections and responsibilities as couples of traditional marriages. A civil union may be certified by a judge, a retired judge, a court magistrate, a public official whose powers include certification of civil unions, a Native American tribe official, or clergy.
Civil unions celebrated in Colorado are valid only in Colorado and whatever states have reciprocal agreements. As of this blog, 17 states recognize same-sex marriages. Traditional marriages are automatically recognized as valid in all 50 states.
What rights/responsibilities does a civil union give to the partners?
Within the state of Colorado, partners receive the following state-level benefits, protections, and responsibilities:
- Responsibility for financial support of a partner
- Responsibility for decisions relating to medical care and treatment
- Responsibility as priority conservator, guardian, or personal representative for a partner
- The ability to inherit real and personal property from a partner without a written will
- The ability to protect exempt property from attachment, execution, or garnishment during a family’s financial crisis
- The ability to designate a partner automatically as a beneficiary to retirement
- The ability to adopt a child of a partner (as long as the child has only one parent)
- The ability to insure a partner
- Hospital visitation
- Eligibility for family leave benefits
- Survivor benefits under workers compensation laws and state or local government pensions
Civil unions also provide an orderly process for the dissolution, legal separation, or declaration of invalidity of a civil union. Note that a civil union cannot be converted to a marriage: the union must first be dissolved and then a marriage license applied for.
In addition, insurance issued after Jan. 1, 2014 allows a civil union partner to name his/her partner as a beneficiary of any insurance policy.
What is the benefit of being under either marriage, civil union, or a Designated Beneficiary Agreement?
Being intestate, i.e. dying without a will, increases the complexity of what the survivor has to navigate. Being in one of the above three designations makes it “easier” for the survivor(s) of the deceased. It’s like the difference between cross-country skiing in tracks vs. having to break fresh powder.
What are some limitations of having a civil union?
Colorado civil unions may or may not be recognized in other states. If they are recognized, the union may be registered or that state may require their own civil union license to be issued. This could lead to the unintended consequence of having an ambiguous start date to the union.
How does the Federal government view of Colorado civil unions?
Civil unions celebrated in Colorado apply only to state-level laws and benefits.
Section 3 of DOMA was ruled unconstitutional by the U.S. Supreme Court on June 26, 2013, in United States v. Windsor. Prior to that, the federal government could not recognize same-sex marriages; implications of that ruling are currently being worked out by each branch of the federal government. Since each branch of the Federal government has its own rules, the application varies on a department basis.
Toolkit:
1. To learn more about what Designated Beneficiary Agreement covers CLICK HERE. Download a PDF Agreement here.
2. Visit http://www.one-colorado.org for more current more information on this topic.
