Illinois Civil Unions Complicated by Federal DOMA and Potential DOMA Repeal

Todd Solomon
June 7, 2011 — 1,907 views  
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The Illinois Religious Freedom Protection and Civil Union Act, which legalizes civil unions for same-sex and opposite-sex partners, takes effect on June 1, 2011.  The law entitles civil union partners to all of the legal rights and obligations that opposite-sex spouses have under Illinois state law by requiring that a party to a civil union be included in any use of the terms "spouse", "family", "immediate family", "dependent", "next of kin", or other terms that denote a spousal relationship throughout Illinois law.  Illinois will recognize as a civil union any same-sex marriage, civil union or substantially similar legal relationship entered into in other states.

The application of the Illinois law is complicated by the intersection of federal and state law.  The federal Defense of Marriage Act (DOMA) continues to define a "spouse" as a husband or wife of the opposite sex.  A civil union in Illinois will not, therefore, be a "marriage" under DOMA.  As a result of DOMA, parties to an Illinois civil union will not be entitled to federal law benefits applicable to opposite-sex spouses (e.g., QJSA/QPSA benefits under tax qualified retirement plans, COBRA coverage, etc.).  Note, however, that on March 16, 2011, both the U.S. House and Senate introduced legislation to repeal DOMA ("The Respect for Marriage Act of 2011") and to instead tie federal law marital status to an individual's marital status in the State where the individual entered into the marriage.  The Respect for Marriage Act bills currently rest with the Judiciary Committees of the House and Senate, and the next step for each (e.g., Committee vote, hearings, Senate and/or House floor vote) is unclear.

Because the new Illinois civil union law may impact areas such as employee benefit plans, employer leave policies (including the Illinois Family Military Leave Act), and any other employer-provided benefits covering spouses, employers should ensure such programs are in compliance with the June 1, 2011 law change.  More information on the employee benefit plan implications of the legalization of civil unions in Illinois can be found here [link to February 1, 2011 OTS "Civil Unions Legalized in Illinois; Implications for Employee Benefit Plans"], while the impact on Religious Organizations benefits is discussed here [link to May 5, 2011 OTS "Impact of Illinois Civil Union Law on Plans Maintained by Religious Organizations"]. 

Todd Solomon

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Todd A. Solomon is a partner in the law firm of McDermott Will & Emery LLP based in the Firmís Chicago office. As a member of the Employee Benefits Department, Toddís practice is concentrated primarily on designing, amending, and administering pension plans, profit sharing plans, 401(k) plans, employee stock ownership plans, 403(b) plans, and nonqualified deferred compensation arrangements. He also counsels privately and publicly-held corporations and tax-exempt entities regarding fiduciary issues under ERISA, employee benefits issues involved in corporate transactions, executive compensation matters, and the implementation of benefit programs for domestic partners of employees. A portion of his practice consists of advising clients on fiduciary and plan investment matters. Todd has experience counseling plan fiduciaries with respect to investment policies, alternative investments (e.g., hedge funds, limited partnerships, real estate), prohibited transaction issues, investment management agreements, and payment of expenses from plan assets.