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Commentary and Analysis Regarding Colorado Law

Civil Unions & Estate Planning

Spouses, Partners, Children & Uncertainty

Submitted by Eve I. Canfield

The Colorado Civil Union Act’s Legislative Declaration states that its purpose is to provide eligible couples (typically same-sex couples) the opportunity to obtain the same benefits, protections and responsibilities that Colorado law  provides to spouses of a legal marriage. It seems a simple enough idea – just replace “spouse” with “partner in a civil union”, right? If it isn’t marriage, do parties get “unionized” or “civilized”? The Civil Union Act will certainly provide advantages under Colorado’s probate laws, but there are over a thousand federal laws that will continue to affect estate planning and other aspects of the lives of same-sex couples. For instance, Social Security Survivor Benefits are based on federal law and are not yet available to any kind of same-sex couples. There are 38 states, including Colorado, that prohibit same-sex marriage, but 20 states that recognize some form of legal relationship. If you were legally married in California, because California recognizes same-sex marriage, you are automatically deemed to be in a civil union in Colorado. What rights as a surviving spouse in California might you lose by this deemed change in your status in Colorado? Are your children legally your children in Colorado, if they are not your biological children? How should your estate plan be modified once you enter into a civil union? It will be some time before all the questions regarding civil unions are resolved, in the mean time it is important to review your situation to take advantage of the new rights and privileges, and also to try to protect those you love against unexpected consequences.

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