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Same Sex Marriage in Illinois Becomes Law

Published in Chicago Lawyer Magazine, February 2014
by Daniel R. Stefani

On November 20, 2013 Governor Pat Quinn signed into law the Religious Freedom and Marriage Fairness Act (“Act”).  The Act becomes effective June 1, 2014.  Illinois becomes the sixteenth state in the nation to allow same sex couples to get married.  It is also allowed in the District of Columbia.

Under the Act, couples who previously entered into a civil union pursuant to the Illinois Religious Freedom and Civil Union Act of 2011 will be able to convert their civil union into a marriage automatically by simply signing a marriage license issued by one of Illinois’ County Clerk’s office.  Specifically, the new Act states “for a period of one year following the effective date of the Act (June 1, 2014), the parties to a civil union may have their civil union legally designated and recorded as a marriage, deemed effective on the date of solemnization of the civil union, without payment of any fee,” . . .  The Act goes on further to state “Upon application to a county clerk, the parties shall be issued a marriage certificate.  The parties’ signatures on the marriage certificate and return of the signed certificate for recording shall be sufficient to convert the civil union into a marriage.”

The Act also provides for Illinois courts to recognize same sex marriages and civil unions entered into in other jurisdictions as a marriage and civil union respectively.  It is also clear that Illinois continues to consider common law marriages invalid.

The Act also states “members of the same sex who enter into a marriage in this state consent to the jurisdiction of the courts of this state for the purpose of any action relating to the marriage, even if one or both parties cease to reside in this state.  A court shall enter a judgment of dissolution of marriage if at the time the action is commenced, it meets the grounds for dissolution of marriage set forth in this Act.”

The other major provision of the Act expressly states that it does not require any religious or Native American groups or tribes or any minister or clergy that represents a religious denomination or Native American group or tribe to solemnize any marriage.  Additionally, such groups have no obligation to provide “religious facilities” for any solemnization ceremonies or celebration associated with the solemnization ceremony of a marriage if such solemnization is in violation of its religious beliefs.  The Act further states that any refusal by such religious or Native American groups or tribes or representative of those groups to solemnize any marriage under the Act shall not create or be the basis for any civil, administrative or criminal penalty claim or cause of action.

The primary economic implication to the Act requires an understanding of the U.S. Supreme Court’s recent majority decision in United States v. Windsor.  On June 26, 2013, in a 5-4 decision, the United States Supreme Court invalidated the Defense of Marriage Act (“DOMA”), which cleared the way for federal recognition of same sex marriages.  Such decision effected over 1000 federal statutes and triggered far-reaching implications throughout the federal government.  Specifically, the federal government now has to allow same sex couples access to federal benefit programs such as Medicaid and Medicare, immigration benefits, a spouse’s right to spousal Social Security benefits, retirement and other employer-provided healthcare.

It appears that the United States Supreme Court’s decision in Windsor only applies to same sex marriages and not civil unions or domestic partnerships.  As such, the Act will now allow for civil unions to be converted so that at least as of June 1, 2014, same sex couples who wish to be married will now be entitled to all federal benefits and status that opposite sex married couples have enjoyed.

Following the fall of DOMA in late August 2013, the U.S. Department of Treasury and the Internal Revenue Service issued Revenue Rule 2013-17.  The Rule states generally that same sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes.  The ruling specifically stated that it applies regardless of whether the couple lives in a jurisdiction that recognizes same sex marriage or in a jurisdiction that does not recognize same sex marriage.  The ruling also clarifies that same sex married couples will be treated as married for all federal tax purposes, including income, gift and estate taxes.  More specifically, the Rule allows same sex married couples to enjoy the same filing status, claims of personal and dependency exemptions, standard deductions, employee benefits, contributions to IRAs and the earned income tax credit or child tax credit.  The ruling specifically states that it does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law.

Additionally, individuals who are in same sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes.  As a result of this ruling, same sex couples in Illinois will need to consult their accountants when considering not only going forward federal tax filings but also potentially amending going backward.

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