Presentation to the South Carolina Bar on September 27, 2016


In my presentation to the South Carolina Bar on September 27, 2016, I will be discussing how civil unions are affected by the marriage equality ruling granting same sex marriage to all U.S. citizens.

A civil union is a legal status created by the state of Vermont in 2000 and subsequently by the states of Connecticut, New Hampshire, New Jersey, Rhode Island, Illinois, Delaware and Hawaii. It provides legal protections to couples at the state law level, but omits federal protections. These protections at the state level could include inheritance rights, rights to spousal employment benefits, joint tax filings at the state level only, and other statewide spousal benefits.

Regardless of the marriage equality decision, it is important to dissolve a civil union for several reasons:

  • If not dissolved, a civil union will still be recognized in many states and your spouse afforded the same rights and responsibilities in that state should you relocate;
  • There is the potential for a spouse in a civil union to commit bigamy by remarrying without obtaining a dissolution of the civil union first (See Elia-Warnkin v. Elia, 463 Mass. 29 (2012)). In that case, the Massachusetts Supreme Court found a subsequent marriage by a spouse without first obtaining a dissolution of his civil union from another state void ab initio;
  • Changing laws could subject spouses to same the rights and responsibilities in their new home state if not previously recognized

While some states allow for a dissolution of civil unions for non-residents where the union was formed in that state, many do not, which requires that at least one spouse of a civil union meet the residency requirement for that state in order to obtain a dissolution of the union.

Federal benefits vary for purposes of whether they are available for spouses of a civil union. For instance, Social Security claims upon a spouse’s record may be available for a spouse of a civil union based upon whether the state allows for spousal inheritance by intestacy (without a will). However, for purposes of the Internal Revenue Service, couples of a civil union cannot file joint federal tax returns because federal entitlements are not available to civil unions.

For these and other reasons, it is important to carefully examine the benefits of being in a civil union versus that of a marriage…and ensure that one dissolves their civil union appropriately or risk several unintended consequences in the future.

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