Guest Post: Civil Unions and Same-Sex Marriage in Colorado
The following post is provided by estate planning expert Erica Johnson, of Ambler & Keenan, LLC in Denver, Colorado.
A Colorado civil union is a relationship established by two eligible persons, male or female, that entitles them to receive the benefits and protections of spouses, as well as gives them the responsibilities of spouses. The one right that is not included for Colorado Civil Unions is the right for the partners to file their state income taxes jointly.
If a same-sex couple has entered into a marriage or substantially similar legal relationship in another jurisdiction, they will be considered to be in a civil union in Colorado. However, this does not mean that another state has to recognize a Colorado civil union. Many states do not recognize civil unions as a legal relationship at all.
What rights will you get if you enter into a Civil Union in Colorado? Some rights include:
- Right to acquire, hold, or transfer real or personal property as Joint Tenant or Tenant in Common.
- Right to be designated as a beneficiary of a Trust
- Right to be a beneficiary in life insurance, retirement, and/or pension plans
- Right to get health insurance from your partner’s employer if they offer such benefits to spouses
- Priority for appointment as Conservator, Guardian, and/or Personal Representative
- Right to visitation in the hospital, nursing home, hospice, etc.
- Right to initiate nursing home complaints
- Right to be an ‘interested party’ for determining a medical proxy decision maker
- Right to challenge a Living Will
- Right to make anatomical gifts
- Right to inherit through intestate (no will or trust left) succession
- Right to direct disposition of last remains
- Right to have standing to receive benefits under Workers’ Compensation Act
- Right to have standing to sue for wrongful death
Partners in a Civil Union will also have the right to sue for emotional distress and loss of consortium. Partners will be able to sue under Colorado’s Dram Shop law. This law permits the owner of a bar or restaurant to be held responsible for serving an intoxicated patron that seriously injures or kills someone while under the influence.
A few other rights partners in a civil union will gain are:
- Right to designate a party to a civil union as a beneficiary under the state public employee’s retirement system
- Survivor benefits under local government firefighter/police pensions
- Right to apply for compensation as a relative of a victim under the Colorado Crime Victim Compensation Act
- Right to receive restitution
- Right to be informed of critical stages of the criminal justice process
- Right to visit partner in a correctional facility, jail (hopefully you won’t need this)
- Cannot be forced to testify against your partner (or this!)
- Right to apply for emergency or involuntary commitment of a party to a civil union
HIPAA in not affected because it is federal. You will still need a HIPAA medical records release. You will also need a Healthcare Power of Attorney. This is not a right automatically afforded to partners in a civil union. You must name your partner specifically in this document to make medical decisions and to be recognized out-of-state.
A partner in a civil union does not have the legal right to make financial decisions for their partner. A General Durable Power of Attorney is still necessary to convey this power.
Partners in a civil union must dissolve their union in the same way they would dissolve a marriage…through divorce. This means one partner may be entitled to maintenance (alimony) according to the judge’s opinion.
There are two ways to enter into a Civil Union. One is to file an application in a Colorado county and have a civil union license issued. That type of civil union provides no federal recognition at all. On the other hand, if a same-sex couple is married in a jurisdiction where it is legal, that will automatically be a civil union in Colorado. For people choosing this option, some departments of the federal government will consider the parties to be spouses. Federal agencies that will honor all same-sex marriages, even if the state where the spouses reside does not recognize the marriage (i.e. married outside of Colorado but living in Colorado), include:
- Internal Revenue Service
- ERISA – governs certain retirement accounts
- COBRA – governs health insurance coverage
- The Justice Department
The following federal agencies will NOT honor all same-sex marriages. They will only consider the parties to be spouses if the state where the parties reside honors the marriage (i.e. NOT Colorado).
- Social Security Administration
- Veterans Administration
It is currently unclear whether Medicare and Medicaid will recognize same-sex marriages for those in a state like Colorado that does not honor their marriage.
I know many of you are excited about civil unions and the changes to same-sex marriage, but complications do exist. Please educate yourselves first, and take a moment to stop and think of the pros and cons before diving in.
Reminder: I am only licensed to practice law in the state of Colorado. The information contained in this article is not intended to be legal advice, and should not be relied upon as legal advice, Information is provided for educational purposes only. You can learn more about Civil Unions and same-sex marriage via my Webinars at www.ambler-keenan.com. Look at the Resources, Consumer Resources section.