Civil Unions in Colorado and the Demise of DOMA

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What does this mean for your estate plan?

I spent this morning in court on a final adoption hearing.  Second-parent adoptions were first authorized in Colorado in 2008 and provided a way for same-sex couples to legally adopt one another’s children.  Adoptions are typically happy occasions.  Unfortunately, the process was more burdensome for my clients than it should have been and felt humiliating and demeaning.  The partner, for example, had to be interviewed by a social worker, submit to a home study and take parenting classes.  None of these steps are required in a step-parent adoption.


This impact on families is what drove the United States Supreme Court on June 26, 2013 in U.S. v. Windsor, 133 S.Ct. 2675 (U.S. 2013), to find that § 3 of the federal Defense of Marriage Act (“DOMA”), which defines “marriage” and “spouse” as excluding same-sex partners, is unconstitutional.  The Court reasoned:


The differentiation demeans the couple, whose moral and sexual choices the Constitution protects. . . and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.


Id. at 2694.  Following Windsor, partners married in jurisdictions recognizing same-sex marriage are eligible for a broad range of federal benefits which touch on married and family life, including the ability to claim the federal estate tax exemption for surviving spouses, and Social Security survivor benefits.


Unfortunately, the Colorado Constitution still defines marriage as “[o]nly a union of one man and one woman.”  Colo. Const. art. II, § 31.  The Colorado Civil Union Act (“Act) became effective May 1, 2013.  Partners in a Colorado civil union have many of the same rights as married couples, but remain unable to take advantage of federal benefits following Windsor.  Further, it is unclear whether federal benefits will be based on the state of celebration, or state of domicile.  Colorado now recognizes civil unions formalized in other states, however, same-sex marriages solemnized outside Colorado will be considered only civil unions in our state.


Colorado civil unions and the overruling of DOMA are progress for nontraditional families.  However, estate planning remains critical for those who want to provide in a private and thoughtful way for the orderly succession of ownership of their property and for the care and support of their children.  Estate planning is especially important to nontraditional couples who (1) have taxable estates either singly or together; (2) own property in other states; (3) wish to protect children and family members; (4) wish to benefit favorite charities; and (5) wish to provide for the survivor of them.  Federal estate tax laws that rely on marital exemption amounts, portability, or other benefits tied to marriage do not apply to civil unions.


If you own property in other states, it is important to remember that those states may not recognize a civil union.  Although you are protected through the laws of intestacy for real property owned in Colorado, you would be subject to another state’s laws for real property located in that state.  Properly drafted estate planning documents will ensure that your wishes are followed, regardless of the jurisdictions in which you own property.


The same is true for medical authorizations.  While Colorado recognizes the right of partners to a civil union to be present in hospital rooms and make decisions on behalf of your partner, other jurisdictions may exclude you from your partner and the decision making process.  Properly drafted medical powers of attorney can help ensure you are treated fairly in other jurisdictions.


Contact our Denver estate planning attorneys today if you would like to learn more about how Colorado civil unions and the overruling of DOMA impact your estate planning goals.


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