Bells have significant symbolic meaning in our country. At the birth of our nation, bells rang for freedom. The Liberty Bell rang on July 8, 1776, to announce to Philadelphia the signing of the Declaration of Independence. As we all know, this document promised the unalienable rights of Life, Liberty and the pursuit of Happiness to all that our Founding Fathers envisioned.
Bells also ring at weddings. Getting married means more than an expression of love; the right to marry conveys significant legal rights as well. Maine voters remind us that we cannot take this fight for marital or civil union rights for granted. What do marriage rights mean to you? Let's focus from Maine back to Illinois.
Now imagine that you fell in love with someone who happened to be the same sex as you. You decided to give up your career to focus on raising your loved one's two kids and maintaining the household. No will or trust or any other legal document exists. This is not unusual… who wants to talk about such unpleasant subjects as death or separation?
Continuing with the hypothetical example, your partner becomes very successful. With your backing, of course your life partner is going to be successful! Your life partner holds the home, the car, and the investments. You and your partner live happily unmarried ( despite not being able to marry ) for 24 years together. What do you think happens to you if your life partner dies unexpectedly?
Think about where you are at this point. You would be at least in your mid-40s. You would have a difficult time finding employment because of a lack of a career. You may even have made some financial commitments on behalf of the family such as credit card bills. So then you have the unpleasant choice of hiring an attorney to try to recoup some of the assets. Let's hope the Illinois judicial system understands your predicament.
A special note needs to be made while you are wondering the result. If you got married, then you would have marital rights. The surviving spouse generally receives the assets when no will or other legal document exists upon the other spouse's death. The spouse is entitled to divorce proceedings upon a separation. In both cases, you generally will receive some assets as a married couple.
Since you cannot get married or enter into a civil union, many commentators believe your fate will be the same as a man by the name of Eugene Costa. The facts are the same as the hypothetical except Eugene and his girlfriend could get married but choose not to marry. After 24 years together, they decided to separate.
Eugene went to Illinois court to receive a portion of his former girlfriend's assets. He argued almost all positions that you would argue. He argued that he was basically in a marital relationship despite not formally being married. Furthermore, he argued that public acceptance of unmarried couples living together has increased since the Illinois Supreme Court ruled against treating a prior separation of an unmarried couple as a divorce.
The court ruled that Eugene Costa was not entitled to any rights to property from being in the 24 year relationship. Citing precedent of an Illinois Supreme Court ruling, the courts disregarded the 24 year relationship "with all the indicia of marriage" other than the formal act of getting married. The court basically treated Eugene and his girlfriend of 24 years as if they were total strangers. The courts rebutted by stating that societal changes need to be reflected by an act of the Illinois legislature.
Maybe the beneficiaries of your life partner's estate will be nice to you and gift some of the assets. But then again, maybe not: money can cause people to act in strange ways.
In a later article, I will describe some legal documents that attorneys can create to simulate marriage property rights. You have several choices but I highly recommend that you discuss these matters with a professional.
Another important consideration in drafting these legal documents is income and gift taxes on transfers between them. The law specifically exempts from income and gift taxes transfers of assets and cash between married couples. However, courts have imposed gift or income taxes on transfers of property and cash between unmarried couples. Care must be taken on asset titling not to impose unexpected taxes.
In my mind, there are two main implications to not being able to marry in Illinois from a financial perspective:
1. The right to receive property from your loved one upon death or separation without having to draft legal documents, and
2. The right not to be taxed on transfers of assets between your loved one. Numerous other important nonfinancial reasons exist as to why marriage equality is important such as powers of attorney should your partner become incapacitated beyond this article.
Note that civil unions may only solve the first issue but it would be a step in the right direction.
Until these wedding bells can ring, same-sex couples need to protect ourselves and our loved ones.
Thomas H. Franklin holds a CPA and a Masters of Science in Taxation degree from North Illinois University. His practice specializes in advising same sex and other unmarried couples on tax and other financial matters. You can look on his web site at www.thomashfranklin.com . His e-mail is thomashfranklin@gmail.com and he welcomes all comments.
