Now that Connecticut has extended to civil union couples “all the same benefits, protections and responsibilities” of marriage, and has also declared that marriage is “the union of one man and one woman,” lawyers can expect to field many questions about civil union status.

The first question clients often have is whether they can form a civil union. Generally, they can if they are at least 18 years old, of the same sex, not a party to another civil union or marriage, not closely related by blood, and not under a conservatorship or guardianship.

There is no residency requirement. Presumably then, persons who are not Connecticut residents can enter into a civil union in Connecticut, but whether their union will be recognized in their home state depends on the laws of that state. Couples who have entered into a civil union, marriage, or domestic partnership in another state often wonder whether they can also enter into a civil union in Connecticut. The attorney general has said that a Connecticut court would likely recognize as valid in Connecticut a Vermont civil union or a California domestic partnership, and therefore those couples cannot enter into a Connecticut civil union.

The opinion further concludes that same-sex marriages from Massachusetts or Canada will not be recognized as valid, and that those couples may form a Connecticut civil union. The recognition of other out-of-state domestic partnerships will depend on how the laws of Connecticut compare to the laws of the other state.

Children And Adoption

Often the impetus for entering into a civil union is the existence of children, or the desire to have them. If both parties considering a Connecticut civil union are already legal parents of a child as a result of a joint or second-parent adoption, the civil union will not change that. Likewise, if one party is not a legal parent, a civil union will not change that either, and the non-legal parent will have to adopt the child.

If a couple have a child after entering into a civil union, the statutory presumption afforded to married persons, under which a child born into a marriage is presumed to be the child of both the wife and the husband, may apply. However, the presumption is untested in the civil union context, so it would be very unwise to rely solely on this presumption to establish a status as important as legal parenthood.

The only way to fully protect the parent-child relationship is through adoption. The Connecticut co-parent adoption statute (Connecticut General Statutes §45a-724) permits a co-parenting partner to adopt regardless of whether the partners are of the same or opposite sex. Where a civil union couple conceives a child through formal artificial insemination, they should meet the requirements of CGS § 45a-771 et seq, which establishes the legitimacy of the child conceived and terminates the parental rights of the sperm donor. Where informal artificial insemination is used, or egg donation or surrogacy, there is no automatic termination of the parental rights of the donor or surrogate, and they must be terminated as prescribed by CGS § 45a-604.

Clients also want to clarify their rights as spouses under federal law and the laws of other states. Generally, the impact of the federal Defense of Marriage Act, which defines marriage as the union between a man and a woman, is to deny to same-sex couples marriage-based federal benefits. These include Social Security benefits, veterans’ benefits, spousal benefits under qualified retirement plans, the unlimited estate and gift tax marital deduction, and the ability to file income taxes as a married couple, and the ability to make split gifts as a married couple.

In addition, there is a great deal of unpredictability in how other states may treat a Connecticut civil union couple. There is no guarantee that the benefits and protections afforded to them in Connecticut will accompany them as they travel to, acquire second homes in, or relocate to other states.

Careful estate planning can extend to civil union couples many of the benefits which are otherwise uncertain or unavailable. Both predictability and portability to other states can be provided by having civil union couples execute: durable powers of attorney (empowering the healthy spouse to make financial decisions for an incapacitated spouse); an integrated document containing a living will; an appointment of health care agent; and a designation of conservator. Civil union couples can also obtain documents authorizing the release of medical records to a partner, and other documents that aid in funeral planning, including those that authorize the release of a body to a spouse.

A will allows civil union couples to avoid the operation of another state’s intestacy laws, which may not extend to them the protections afforded to opposite-sex spouses. A will also allows civil union spouses to name the guardian of their children, which is essential if the surviving member of the couple has not acquired the status of legal parent.

A trust can be used to avoid probate in a state where the civil union couple may not have the same protections as in Connecticut, and spouses can serve as co-trustees to make sure each has access to and authority over the trust assets regardless of the laws of another state. Although the marital deduction will not be available for estate planning, the leveraged techniques available for non-spouses are available and can significantly reduce the size of the estate and the resulting tax. These techniques include limited liability companies, grantorretained annuity trusts, qualified personal residence trusts, and charitable remainder trusts. Irrevocable life insurance trusts can also reduce the estate and provide assets for the surviving spouse.