Religious Freedom and Marriage Fairness Act Signed Into Law

Yesterday, November 20, 2013, Illinois Governor Pat Quinn signed SB 10 into law in Illinois.  The Illinois Senate previously voted on November 5th to approve Senate Bill 10 (“SB 10”), also known as the Illinois Religious Freedom and Marriage Fairness Act (the “Act”).  The new law will take effect on June 1, 2014.

The Act specifically provides that its purpose is to “provide same-sex and different-sex couples and their children equal access to the status, benefits, protections, rights, and responsibilities of civil marriage.”  The Act extends to same-sex marriages all of the legal rights and protections of marriage currently afforded to different-sex marriages under Illinois law.  To implement this change, the Act amends the Illinois Marriage and Dissolution of Marriage Act to recognize a marriage “between 2 persons” – rather than “between a man and a woman,” and deletes a section in the current version of the Marriage and Dissolution of Marriage Act that lists a marriage between two individuals of the same sex as a “prohibited marriage.”

Although Illinois law has allowed same-sex civil unions since 2011, the rights of couples in a civil union are not as broad as those afforded to married couples – specifically, couples who enter into a civil union are not entitled to the protections or responsibilities conferred by federal law.  This means that, among other things, civil union partners cannot file joint federal tax returns, receive social security and veterans’ survivors or spousal benefits, or make use of the unlimited exemption from federal estate tax.  Married couples, by contrast, are entitled to all of these benefits under federal law, since the Supreme Court struck down a key section of the federal Defense of Marriage Act in June, 2013.  As a result, the federal government now recognizes the marriages of same-sex couples, which confers upon them the same rights under federal law that have historically been available to married different-sex couples.

Once the Act takes effect on June 1, 2014, Illinois couples who are in a civil union may choose to convert their civil union to a marriage, and the fee for a marriage certificate will be waived.  In addition, for a period of one year after the Act becomes law, parties to a civil union may have their civil union legally designated and recorded as a marriage without having to pay any fee to do so.  

The Act will have wide-reaching effects for Illinois same-sex couples in a number of legal areas.  With respect to Illinois and federal tax law, the Act will give same-sex married couples the ability to file jointly on both state and federal tax returns.  Rights in the area of estate planning will also be extended, as married same-sex couples will be entitled to take advantage the unlimited marital deduction for estate tax.  Pursuant to this rule, all marital assets – regardless of value – can be transferred from a deceased spouse to the surviving spouse free of any Illinois or federal estate tax.  Similarly, the Act will extend the portability of the unified federal estate and gift tax credit to same-sex married couples as well.  This “portability” means that the unified exemption from federal estate and gift tax, which (for 2013) allows every individual to transfer a total of $5,250,000 in lifetime gifts or gifts at death, will effectively be doubled for a married couple.  Each spouse may take full advantage of his/her exemption, allowing the couple to transfer a total of $10,500,000 to the next generation, free of federal estate tax.

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Disclaimer: This article provides legal information of a general nature and is not intended as legal advice, nor does it create an attorney-client relationship with any person or group of persons. Should you wish to obtain legal advice concerning your particular situation, contact an attorney.