CIVIL UNIONS & ESTATE PLANNING AFTER THE DOMA RULING

Transcription

1 CIVIL UNIONS & ESTATE PLANNING AFTER THE DOMA RULING ERICA L. JOHNSON 950 South Cherry Street, Suite 1650 Denver, Colorado ESTATE PLANNING PROBATE TRUST ADMINISTRATION MEDICAID PLANNING

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3 ERICA L. JOHNSON Erica Johnson is an Associate in the law firm of AMBLER & KEENAN, LLC. She is admitted to practice law before the Supreme Court of the State of Colorado and the United States District Court for the District of Colorado. Erica received her B.S. in Broadcasting Management from Northern Arizona University in She was awarded her Juris Doctor from the University of Denver College of Law. Erica s practice emphasizes estate planning, probate, trust administration and second parent adoption. She is a member of the American Academy of Estate Planning Attorneys. Her other professional associations include membership in the Denver Bar Association, Trusts and Estates section of the Colorado Bar Association, Colorado Women s Bar Association, Women s Estate Planning Council and National Association of Insurance and Financial Advisors. She is a frequent speaker on the topic of estate planning for non-traditional families. In 2012, Erica was awarded the philanthropic leadership award by the Denver Foundation. Before beginning her law career, Erica was the Vice President of Marketing and Operations for a regional jewelry store chain in Colorado and Wyoming. She is a Colorado native, born and raised in Littleton, Colorado. is dedicated to providing cost effective service to their clients as they accumulate, preserve, and transfer wealth. Erica believes that an estate plan will be most effective when it is crafted by a team comprised of the client s most trusted advisors.

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5 Civil Unions and Estate Planning after DOMA Ruling Erica Johnson, Esq. Ambler & Keenan, LLC 950 S. Cherry St. Suite 1650 Denver, CO B.S. in Broadcasting Management, Northern Arizona University Juris Doctorate, University of Denver Denver Mayor s GLBT Commission Chairperson Member - Colorado Women s Estate Planning Council Member, American Academy of Estate Planning Attorneys Member, Colorado Gay and Lesbian Bar Association Member, Denver Gay and Lesbian Chamber of Commerce Member, Trusts and Estates Section, Colorado Bar Association Erica Johnson is only licensed to practice law in the state of Colorado Information is not intended to be legal advice, and should not be relied upon as legal advice. Information is provided for educational purposes only 1

6 Civil Union means a relationship established by two eligible persons pursuant to this article that entitles them to receive the benefits and protections and be subject to the responsibilities of spouses. Partner to a Civil Union or Party to a Civil Union Spouses means two persons who are married 2

7 Civil Unions Application and the Logistics Out of state same-sex marriage = a Civil Union in Colorado A civil union, domestic partnership or substantially similar legal relationship between two persons that is legally created in another jurisdiction = a civil union in Colorado Necessary to get a Colorado Certificate of Civil Union? NO Can you? Varies by County Should you? Affecting time periods? 3

8 Other states don t have to recognize a Colorado civil union. Some states have laws that they will recognize other states civil unions, same-sex marriages and/or domestic partnerships, but many do not. Freedom to Marry National Center for Lesbian Rights Human Rights Campaign Civil Unions and Children Any Person Twenty-One Years of Age or Older can Adopt No need to be married to the sole legal parent Home study required FBI, CBI, SAFE check, home visit, references Parent training required as of

9 If in a Civil Union Step-Parent Adoption instead of Second-Parent Adoption No home study needed No parenting training FBI/CBI still required Hearing still required Out of state birth certificates still might have issues if they refuse to issue a new birth certificate If in a Civil Union at the time the child is conceived, the responsibilities and rights of the non-biological partner to the biological partner s child are determined as if the parties were spouses. Presumption of parenthood for the nonbiological partner Vital statistics acting prematurely? Should you get a court order anyway? The Different Options 5

10 Many couples have registered their Domestic Partnerships Denver, Aspen, Boulder. No legal rights attached Used as proof for employers granting rights to domestic partners State of Colorado Not substantially similar not a Civil Union Two unmarried people can give each other 16 of the rights that married people get All 16 rights also included in a Civil Union All covered more thoroughly by a good estate plan, except. Right to sue for wrongful death and right to seek worker s comp benefits Should be part of an estate plan if NOT in a Civil Union 6

11 CIVIL UNIONS ALL THE RIGHTS OF A DBA AND MORE Rights, benefits, protections, duties, obligations, responsibilities, and other incidents under law as are granted to or imposed upon spouses. Whether they derive from statute, administrative or court rule, policy, common law or any other source of law BUT not filing taxes jointly Party to a civil union is included in dependent, family, heir, immediate family, next of kin, spouse or any other term that denotes familial or spousal relationship, as those terms are used throughout the Colorado Revised Statutes. 7

12 Emotional distress, Loss of consortium (a partner in a civil union whose partner has been injured by the negligence of a third party may recover for loss of `consortium, i.e., for loss of conjugal fellowship and sexual relations). Colorado s Dram Shop law permits the owner of a bar or restaurant to be held responsible for serving an intoxicated patron that seriously injured or kills someone while under the influence. Ability to cover a party to a civil union as a dependent for life insurance Insurance coverage provided by a health coverage plan, including the ability to cover a party to a civil union as a dependent Other insurance policies that provide coverage relating to joint ownership of property Remember - Cost of insurance, if paid by the employer, is taxable income to the employee partner federal law ask your tax advisor UNLESS the partners are married in a state where same-sex marriage is legal 8

13 Dissolution/declaration of invalidity, legal separation Maintenance (alimony) responsible for financial support of one another new law on this, lesser earner will get maintenance in most instances Property Division - Equitable Award of attorney fees Will a Colorado divorce dissolve a marriage or civil union from another state recognized here under reciprocity? Unknown. Does a state that doesn t recognize civil unions (Iowa as an example) have to recognize a Colorado dissolution of Civil Union, or could you be required to get divorced also in Iowa? Unknown Right to family allowance, exempt property upon death of partner in a Civil Union - Can t disinherit a partner in a civil union they have a right to an elective share -5% per year, years of a civil union up to 50% 9

14 Parties to a civil union may create agreements modifying the terms, conditions, or effects of a civil union in the same manner as spouses in a Marital Agreement. Did the supreme court s ruling on DOMA affect my civil union in Colorado? Civil Unions are not marriages no matter what, so Civil Unions performed in Colorado have no recognition by the Federal government 13 states and D.C. allow same-sex marriage 35 states do not, by statute or constitution Colorado has statute and constitutional Mini-DOMA marriage = one man, one woman 3 ways to amend our constitution, all involve statewide election 10

15 What if I go to a state where same-sex marriage is legal, get married and come back to Colorado? It is a Civil Union for state law purposes, automatically as of May 1, 2013 What Federal Rights will I get, if any? U.S. Citizenship and Immigration Services (USCIS) uses place of celebration As long as the marriage was validly entered into under the law of the state or country of celebration, it should not matter where you currently reside Civil Union - Untested, but answer should be yes per NCLR/ACLU, etc. Even if state law says not married, but you are in a Civil Union (Colorado) eligible if the laws of your state provide you inherit under intestacy laws. Married in another State living in a state that does not have marriage or Civil Unions won t work SS uses place of domicile of the wage earner - 11

16 IRS now uses state of celebration Any same-sex couple that is married in a state where it is legal, will be considered married for IRS purposes. Even if they live in a state that does not recognize their marriage i.e. Colorado Talk to Tax Advisor 3 year amended tax returns if married now? Benefits of Being Federal Spouses Transfers of property because of divorce not gifts Alimony paid is tax deductible No estate tax at first spouse s death Unlimited lifetime gifting Cost of insurance not taxable for employee spouse Spousal IRA Contributions are possible Generally, the military will consider a marriage valid if it was valid in the state where the marriage took place. Should not matter what state you live in Spousal ID card, TRICARE medical insurance, dependent rate housing allowance, family separation allowance, ability to move off base with a spouse, access to base, etc. legal assistance 12

17 Spouse = person of the opposite sex who is a wife or a husband Marriage is marriage if valid according to the law of the place where the parties resided at the time of the marriage OR when the benefits take effect Could marry out of Colorado BUT must live in a recognition state when benefits take effect Courts or Congress will need to sort out current case pending already Uses place of Domicile so not in Colorado Colorado has a state FMLA for partners in a civil union new in 2013 Uses place of Domicile so not in Colorado Colorado has a state FMLA for partners in a civil union new in

18 Would fix all discrepancies at a Federal Level Will or Trust Durable General Power of Attorney Medical Power of Attorney Living Will HIPAA Release Last Remains Declaration Advanced Planning Charitable Trusts Irrevocable Life Insurance Trusts Qualified Personal Residence Trust Donor Advised Funds 14

19 and we look forward to seeing you soon Helping People Preserve Their Wealth 15