The new Civil Union Act and its effect on the Illinois Probate Act

On June 1, 2011, Illinois became the sixth state to recognize civil unions for same-sex couples. The Illinois Religious Freedom Protection and Civil Union Act provides for all parties entering into a civil union arrangement to be treated as spouses under Illinois law.1 The Act further provides that all parties to a civil union are entitled to equal obligations, responsibilities, protections and benefits given by Illinois law to spouses. Some of these protections and benefits include, but are not limited to, health care benefits, the right to hold real estate as tenants by the entirety, the right to seek spousal financial support, visitation rights and child custody, and the right to be recognized as a spouse under the Illinois Probate Act. This latter right is extremely important in today’s society, where more and more households depend on two incomes, especially when children are involved. For couples who have not planned for the disposition of their estate, either through a simple will or more complex estate planning, the Illinois Probate Act provides certain safeguards for surviving spouses.

Some of the most important rights afforded spouses under the Illinois Probate Act include the right to receive a spousal award, primary preference in nomination as representative of the deceased spouse’s estate, and the right to either half or the entire estate of the deceased spouse, depending on if the deceased spouse has children. During the administration of a decedent’s estate in Illinois, the surviving spouse is entitled to “a sum of money…for the proper support of the surviving spouse for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the surviving spouse.”2 The award must be no less than $20,000 along with an additional sum of no less than $10,000 for each minor child.

Along with spousal awards, parties to a civil union in Illinois will now have a say as to who is entitled to act as Administrator if his or her spouse dies without a will. In Illinois, a surviving spouse or any individual nominated by a surviving spouse is entitled to preference in obtaining letters of administration.3 Regarding the disposition of the deceased spouse’s remains, parties to a civil union who are also appointed as administrator will now have priority to direct how and where the decedent is to be buried or cremated.4

While intestacy laws may protect surviving spouses who are parties to a civil union, it is important to keep in mind that only six states recognize these unions. Therefore, estate planning for disability and death remain important tools for same-sex couples. The importance of having healthcare and property power of attorney forms, Health Insurance Portability and Accountability Act (HIPAA) authorizations, living wills, and other estate planning documents remains in place for same-sex couples. ■

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1. S.B. 1716, 97th Gen. Assembly (Ill. 2011).

2. 755 ILCS 5/15-1(a) (2011).

3. 755 ILC S 5/9-3(a) (2011).

4. 755 ILCS 65/5 (2011).