An update on the evolution of committed, same-sex relationships in state of Colorado
Matthew Laurel Trinidad
In February, this column described the perils that same-sex couples face when they fail to plan their estates. At the time, same-sex couples could not avail themselves of the benefits and protections of marriage. I suggested that, as a consequence, same-sex couples should make appropriate legal arrangements, thoughtfully designed to approximate marriage because a failure to do so could end in tragedy.
A lot has changed since February. Same-sex couples in Colorado can now form a civil union, which gives them substantially all of the rights and obligations of marriage under state law. Meanwhile, the U.S. Supreme Court decision in United States v. Windsor struck down certain portions of the Defense of Marriage Act (DOMA), paving the way for the federal government to recognize same-sex marriages.
But any reports of DOMA’s demise are somewhat premature. Windsor made no ruling on the DOMA provisions that allow states to refuse to recognize same-sex marriage. The tide of public opinion in our state may have swung decisively in favor of enfranchising committed, same-sex relationships, but our constitution still says that “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”
The Colorado civil union legislation basically says that any state law that applies to marriage applies equally civil unions, so some may ask, aren’t civil unions enough? Why does it matter that our constitution won’t permit same-sex marriage?
Here’s why: The IRS will not extend the rights associated with marriage to those whose only legal relationship is a civil union. To the extent that other federal agencies so limit what they consider to be a marriage under federal law, this development could have broad implications for those whose only legal relationship is a civil union. If other federal agencies so-limit what they consider to be a marriage under federal law this development could have broad implications for those whose only available option is a civil union.
Here’s another reason: A civil union disappears at the state line. A hospital in Gulf Shores, for instance, may look to blood relatives instead of a civil partner for the end-of-life decisions concerning the life and death of a civil partner who was critically injured while visiting family. The siblings of a deceased civil partner who lived in Glenwood but who returned to Topeka for hospice care might successfully argue in court that Kansas law applies when it comes time to distribute her estate, effectively nullifying the civil union.
Solutions exist that can mitigate these risks, so despite the recent and historic changes to the law, same-sex couples still may pay a high price for a failure to carefully plan their estate.
The question of whether to recognize same-sex marriage will likely be on the general ballot in 2014, so voters here will soon have an opportunity to resolve some of these issues by constitution amendment. Other developments will continue to occur at both the state and federal levels.
It’s impossible to capture the nuances of this complex and evolving area of the law in a monthly column, so I’m teaching a class on estate planning for same-sex couples at CMC in Glenwood Springs on Sept. 19. The cost is minimal. I invite you to attend if this topic matters to you.
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