A Service of Rainbow Law

Apparently inspired by the example of Hawaii, which adopted its "Reciprocal Beneficiaries" Law in 1997 at the same time that its legislature placed on the ballot a constitutional amendment intended to authorize the legislature to deny the right to marry to same-sex couples, the Colorado legislature and Governor Bill Ritter have enacted the Colorado Designated Beneficiary Agreement Act, HB 09-1260, which will provide a legal status accompanied by a list of legal rights and benefits for unmarried couples (both same-sex and different-sex). The measure, which adds a new Article 22 to Title 15 of the Colorado Revised Statutes, takes effect on July 1, 2009.

The legislative findings assert that "not all Coloradans are adequately protected by existing statutes" intended to provide default rules for estate planning purposes, and thus the legislature is amending and supplementing those laws to provide certain protections and benefits to unmarried couples who designate each other as beneficiaries. The findings section also calls for liberal construction of the statute to give effect to the purposes articulated in the findings. The measure provides that execution of various specific estate planning documents, such as a will or a medical power of attorney, subsequent to the execution of a designated beneficiary agreement will override the terms of the designated beneficiary agreement. Only unmarried couples can enter into designated beneficiary agreements.

The effects and applicability of entering into such an agreement are spelled out in summary form in what will be Colo. Rev. Stat. 15-22-105, and include the right to own property in the same joint form as married couples, to be designated a beneficiary, payee or owner as a trustee named in an inter vivos or testamentary trust for the purposes of avoiding probate, to be a beneficiary under public employee retirement and pension and health insurance plans, to be a designated beneficiary under workplace health plans to the extent that an employer wishes to include designated beneficiaries (the state can’t compel this for private sector employers due to federal ERISA preemption), the right to petition for and have priority for appointment as a conservator, guardian, or personal representative, to visit in a health care institution, to be a proxy decision-maker on medical treatment and end-of-life decisions, to act as an agent under the uniform anatomical gift act, to inherit through intestate succession, to receive spousal benefits under workers compensation, to bring wrongful death actions, to make after-death bodily disposition decisions. The measure takes to care to limit the right of designated beneficiaries to those enumerated in the statute, and eschews the use of designated beneficiary agreements to provide intent to form a common law marriage.

The statute provides a form of agreement under which couples who wish to designate each other as beneficiaries will indicate by initialing their agreement to each of the rights spelled out in the statute, so there is a permanent record, and evidently designated beneficiaries can thus tailor their agreement to include as many or as few of the rights as they desire. The agreements will be filed and recorded with county clerks, and will be held as open records subject to public inspection. A form is also provided for revoking such agreements. Agreements terminate upon the death of one party, except to the extent that the agreement designated particular rights that normally would be exercised after the death of one party, such rights would survive.

After itemizing the various rights, the statute sets out specific amendments to provisions of the probate code and other laws required to facilitate the recognition of designated beneficiaries.

While this legislation falls far short of same-sex marriage or even civil unions or state level domestic partnerships, it is at least a start towards providing legal recognition and support for same-sex partners who are serious about their relationship and desire some of the rights and responsibilities that would come with marriage.