Can you be a little bit married?

There is an old adage that “You can’t be a little bit married or a little bit pregnant.”  That may be changing in Colorado. On March 21, Gov. John Hickenlooper signed the Colorado Civil Union Act (CCUA), which becomes effective May 1.  Although “marriage” in Colorado is still limited by State Constitution to unions between one man and one woman, the CCUA goes a long way toward extending the rights and responsibilities of marriage to same-sex couples in Colorado.  Nevertheless, it leaves some gaping holes, too.

THE “ALMOST MARRIED” ASPECTS OF THE NEW LAW

Family relationships and the rights of couples are typically left to state rather than federal law.  The Colorado Constitution limits “marriage” to a union between one man and one woman.  The federal Defense of Marriage Act (DOMA) does the same thing.  The Colorado legislature does not have the legal authority to enact laws that violate either the state constitution or federal laws.  Therefore, when seeking to provide legal rights to same sex couples, the legislature was required to stop short of legalizing marriage for same sex couples.  Instead, they did the next best thing.

The approach of the CCUA is simple. The legislature combed the Colorado statutes for every instance where the word “spouse” appears, and every instance where rights or obligations are established for married people, and it extended those same statutory rights and obligations to partners to a civil union.  Married people have access to the courts when they want to change their family structure through divorce or adoption; now partners to a civil union do, too.  The Colorado Probate Code establishes certain protections for surviving spouses; now it also extends those same protections to civil union partners.  And the list goes on and on. Sounds pretty good, doesn’t it?

THE “NOT QUITE SO MARRIED” PROBLEMS THAT STILL EXIST

The problem is that the CCUA does not go far enough — not because the legislature would not have liked to go further (who knows what it would have done if no limitations existed?), but because they have no power to change the myriad of federal laws that also apply to “married” people.  Some gaping holes are:

• The inability to file joint federal tax returns or to have the same federal tax rights as married people (including the right to tax-free property transfers between spouses, certain tax avoidance techniques in estate planning, and to deduct spousal maintenance paid at the end of a marriage). 
• The inability to benefit from immigration laws that enable a spouse who is not a US citizen to move to the US.  Civil union partners will not benefit from this right.
• The inability to benefit from federal benefits afforded to spouses such as Social Security and Veterans’ benefits.
• The absence of protections relating to employment and retirement benefits afforded to spouses under ERISA.
• Since federal law does not recognize civil unions or same-sex marriage, a civil union partnership established in Colorado may not be recognized in another state.
• Retroactivity of rights.  Many couples who enter into civil unions will already have been committed to each other for years.  Their legal rights regarding such things as the accumulation of “marital property” will nevertheless begin on the date of their civil union. 

Some of these holes can be plugged by contract:  Couples who desire to retroactively vest in property or support rights, or who wish to ensure that those rights follow them to other states, can do so through civil union agreements entered into pursuant to the Colorado Marital Agreement Act.

Other issues can be addressed by employers:  Discrimination on the basis of sexual orientation or marital status is already illegal under the Colorado Anti-Discrimination Act, but employers can take this opportunity to review their employment policies and handbooks to ensure that they are extending the same benefits to partners to civil unions as they are to their married employees.  Employers may also want to check in with their benefit plan administrators to ensure that they understand how their benefits plans will be applied to civil union partners.

CHANGES YET TO COME

The U.S. Supreme Court is currently considering two cases that could greatly impact these gaping holes in the rights of same-sex couples.  If DOMA is found to be unconstitutional, or if the rights of same-sex couples are otherwise expanded under federal law, we can expect Colorado law to expand accordingly.  Your legal advisor should be able to help you better address the “not so married” parts of existing law under the CCUA, whether you are considering a civil union yourself, or trying to ensure that your business complies with applicable law.