Civil Unions Likely to be Recognized Soon

 

Civil Unions are most likely coming to Colorado!  You can watch a video by Michael Valdez, Director of Legislative Relations at the Colorado Bar Association about the Judiciary Committee approval of SB 13-11 here .  The Colorado Bar Association supports the bill.  The bill has passed the Senate Committee and is very likely to become law.  Read more here.    This is an important development for civil rights and has important ramifications for estate planning and elder law for same sex couples.  The big picture of rights of same –sex couples in the United States is in a major state of flux right now.  Voters approved gay marriage ballot measures in the 2012 election in Maryland, Washington and Maine.   The U.S. Supreme Court will be examining the constitutionality of the (federal) Defense of Marriage Act (DOMA)as a result of the rulings by U.S. Courts of Appeal  (the First Circuit in Boston and the Second Circuit in New York)  that portions of the law are unconstitutional.  What will be interesting from the historical perspective is that the “state rights” reliance, used by southern states to continue segregation in the 1950’s and 1960’s will likely be the undoing of the DOMA.  Such a ruling by the Supreme Court would result in a major change in federal benefits and tax treatment of same sex marriages, but will still leave a checkerboard of state laws regarding whether a same-sex couple can be married.  Right now there are a variety of laws among the states that address marriage, civil unions and domestic partnerships for same sex couples.  Read an article by a Vermont law school professor about that here.

You can read “A Bill for an Act Concerning Authorization of Civil Unions”  (SB 13-11) here.    The bill specifically states that “the rights, benefits, protections, duties, obligations, responsibilities and other incidents under law that are granted or imposed under the law to spouses apply in like manner to parties to a civil union” and includes many provisions – of particular interest for me are the probate laws regarding decedent’s  estates (intestate succession, wills and trusts) as well as “living” probate proceedings such as guardianship and conservatorship matters.  And yes, those who are united in civil union will be subject to the same processes such as dissolution, legal separation and declaration of invalidity as pertain to marriage.

This will obviously be a major improvement for committed same sex couples over the current Colorado law, which includes the Designated Beneficiaries Act.  You can read my article about it here.    Keep in mind that the Designated Beneficiaries Act and a Designated Beneficiaries Agreement is available to two persons who are unmarried, a very broad group of individuals.  I will post updates in the future on these important state and federal developments.

Legal and Financial Considerations for Nontraditional Relationships part 2

 

Last night I attended the monthly meeting of the Women’s Estate Planning Council , and as usual – we had a very informative speaker.  Bradley L. Kolstoe  presented “Savvy Social Security Planning,” about understanding the importance of Social Security.  I have to say that I would use the term “understanding” from my perspective here rather loosely.  It reminds me of P.L. Travers’, the author of Mary Poppins (yes, she’s still around – she recently battled Voldemort at the London Olympics!) description of the term as “standing under.”  There was a downpour of information and a lot of  it rolled right off me!  Luckily, we can visit Brad’s website here, and it has several helpful articles

So what about Social Security and nontraditional relationships?  Well, social security retirement is the biggest federal benefit regime and it only applies to individuals and married couples (I’m leaving out minor children and others intentionally here).  What are the implications for couples who are co-habiting but not in a marital relationship?  Huge!  I think it is part of the many details that couples who could otherwise be married typically overlook.  I’m talking here about opposite sex couples, because federal benefits only apply to them as long as the Defense of Marriage Act Defense of Marriage Act (DOMA, Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is in force – which may not be much longer. . .

So what’s the point I’m making here?  I recently published a book review in The Colorado Lawyer  of Professor Cynthia Grant Bowman’s 2010 Oxford University book “Unmarried Couples, Law and Public Policy.”  This book covers the marriage debate (cohabitation), but not the “marriage equality” (for same sex couples) debate.  With the decreasing number of people getting married, and divorces among folks over 50 going up considerably ,retirement planning and factoring in social security benefits are getting more complicated all the time!  The bigger issue that concerns me is for the unmarried couples who tend to underestimate the value of social security to financial stability in retirement years.

As Bowman points out in her book, cohabitation in the U.S. is problematic at best.  Unlike nearly all European countries, which have adopted some national laws  aimed at addressing the cohabitation phenomenon, the U.S. is still “on the fence” about some pretty basic issues.  What we have in this country, is a patchwork crazy quilt of local, sometimes statewide recognition of certain limited rights in particular states.  There is no standard for these rights, they are typically determined on a case-by-case basis, based on particular facts of each case brought to a court’s attention.  Cohabiting couples either have to forge their own agreements about important financial and legal considerations, or see what happens as a result of legal action.  There is no legal proceeding for “termination of cohabitation,” so the type of legal rights sought to be enforced really depends on the particular couple.

This can be a big problem, particularly for those vulnerable persons in a cohabiting relationship – who tend to be (but this is changing to some extent) women and children.  Bowman recommends providing legal remedies to cohabitants including:

(1) domestic partners who have been together two years or more and have a child together should be treated as though they were married;

(2) the ability to “opt out” contractually of these obligations should be easily available for couples not wishing to be treated as married; and

(3) a system for registration as domestic partners should be provided, accompanied by all the benefits and burdens of marriage unless the partners opt out with their own contractual arrangement delimiting their rights.

Bowman at 223.  I think as a country we might be some distance away  from providing such protections to cohabitants, so in the meantime it’s best to protect yourself by knowing what rights you have and what rights you don’t have when you are in a cohabiting relationship.  Bottom line is – don’t make assumptions based on your lifestyle.  Just because you feel like you’re married doesn’t mean the law won’t treat you like “legal strangers!”  Make sure you know what your future looks like if you are in an unmarried (cohabiting) relationship.

 ©Barbara Cashman, LLC   www.DenverElderLaw.org