Text of IL SB 1716 (2010)

96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 SB1716 Introduced 2/19/2009, by Sen. Don Harmon SYNOPSIS AS INTRODUCED: 735 ILCS 5/13-209 from Ch. 110, par. 13-209 Amends the Code of Civil Procedure. Provides that when a person dies before an action is filed against him or her, a court may appoint a special representative for that decedent, against whom an action may be brought without opening an estate. Deletes a provision requiring notice to heirs or legatees as the court directs, and provides instead that the plaintiff must notify all known heirs or legatees of the decedent by U.S. mail. Provides that any interested person may be substituted as the special representative for good cause shown. Provides that proceeding under this provision shall not bar the estate from filing counterclaims. Deletes a provision limiting recovery to proceeds of any liability insurance available to the estate. Provides that these changes apply to actions commenced or pending on or after the effective date of this amendatory Act. Effective immediately. LRB096 04132 AJO 14173 b A BILL FOR SB1716 LRB096 04132 AJO 14173 b 1 AN ACT concerning civil law. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Code of Civil Procedure is amended by 5 changing Section 13-209 as follows: 6 (735 ILCS 5/13-209) (from Ch. 110, par. 13-209) 7 Sec. 13-209. Death of party. 8 (a) If a person entitled to bring an action dies before the 9 expiration of the time limited for the commencement thereof, 10 and the cause of action survives: 11 (1) an action may be commenced by his or her 12 representative before the expiration of that time, or 13 within one year from his or her death whichever date is the 14 later; 15 (2) if no petition for letters of office for the 16 decedent's estate has been filed, the court may appoint a 17 special representative for the deceased for the purpose of 18 prosecuting the action. The appointment shall be on 19 verified motion of any party who appears entitled to 20 participate in the deceased's estate, reciting the names 21 and last known addresses of all known heirs and the 22 legatees and executor named in any will that has been 23 filed. The court's determination that a person appears SB1716 - 2 - LRB096 04132 AJO 14173 b 1 entitled to participate in the deceased's estate shall be 2 solely for purposes of this Section and not determinative 3 of rights in final disposition. Within 90 days after 4 appointment, the special representative shall notify the 5 heirs and legatees of the following information by mail: 6 that an appointment has been made, the court in which the 7 case was filed, the caption of the case, and a description 8 of the nature of the case. The special representative shall 9 publish notice to unknown heirs and legatees as provided in 10 the Probate Act of 1975. If a will is filed within 90 days 11 after the appointment of the special representative, the 12 same notice shall be given to any additional executors and 13 legatees named in the will. At any time that an estate is 14 opened with a representative other than the special 15 representative, the court may upon motion substitute the 16 representative for the special representative. In this 17 case, the court shall allow disbursements and fees of the 18 special representative and his or her attorney as a claim 19 against any proceeds received. The proceeds of any judgment 20 or settlement shall be distributed under the provisions of 21 the Probate Act of 1975. 22 (b) If a person against whom an action may be brought dies 23 before an action is filed against him or her, and before the 24 expiration of the time limited for the commencement thereof, 25 and the cause of action survives, and is not otherwise barred: 26 (1) an action may be commenced against his or her SB1716 - 3 - LRB096 04132 AJO 14173 b 1 personal representative after the expiration of the time 2 limited for the commencement of the action, and within 6 3 months after the person's death; 4 (2) if no petition has been filed for letters of office 5 for the deceased's estate, the court, upon the motion of a 6 person entitled to bring an action, and after the notice to 7 the party's heirs or legatees as the court directs and 8 without opening an estate, may appoint a special 9 representative for the deceased party for the purposes of 10 defending the action. Proceeding under this provision If a 11 party elects to have a special representative appointed 12 under this paragraph (2), the recovery shall be limited to 13 the proceeds of any liability insurance protecting the 14 estate and shall not bar the estate from enforcing any 15 claims that might have been available to it as 16 counterclaims. 17 (3) After appointment of the special representative 18 for the deceased party, plaintiff shall give notice of the 19 appointment by U.S. mail to all known heirs or legatees of 20 the decedent. 21 (4) Any interested person may be substituted as the 22 special representative for good cause shown. 23 (c) If a party commences an action against a deceased 24 person whose death is unknown to the party before the 25 expiration of the time limited for the commencement thereof, 26 and the cause of action survives, and is not otherwise barred, SB1716 - 4 - LRB096 04132 AJO 14173 b 1 the action may be commenced against the deceased person's 2 personal representative if all of the following terms and 3 conditions are met: 4 (1) After learning of the death, the party proceeds 5 with reasonable diligence to move the court for leave to 6 file an amended complaint, substituting the personal 7 representative as defendant. 8 (2) The party proceeds with reasonable diligence to 9 serve process upon the personal representative. 10 (3) If process is served more than 6 months after the 11 issuance of letters of office, liability of the estate is 12 limited as to recovery to the extent the estate is 13 protected by liability insurance. 14 (4) In no event can a party commence an action under 15 this subsection (c) unless a personal representative is 16 appointed and an amended complaint is filed within 2 years 17 of the time limited for the commencement of the original 18 action. 19 The changes to this Section made by this amendatory Act of 20 the 96th General Assembly apply to actions commenced or pending 21 on or after the effective date of this amendatory Act of the 22 96th General Assembly. 23 (Source: P.A. 90-111, eff. 7-14-97.) 24 Section 99. Effective date. This Act takes effect upon 25 becoming law.

SB1716 EnrolledLRB096 04132 AJO 14173 b 1 AN ACT concerning civil law. 2 Be it enacted by the People of the State of Illinois, 3represented in the General Assembly: 4 Section 1. Short title. This Act may be cited as the 5Illinois Religious Freedom Protection and Civil Union Act. 6 Section 5. Purposes; rules of construction. This Act shall 7be liberally construed and applied to promote its underlying 8purposes, which are to provide adequate procedures for the 9certification and registration of a civil union and provide 10persons entering into a civil union with the obligations, 11responsibilities, protections, and benefits afforded or 12recognized by the law of Illinois to spouses. 13 Section 10. Definitions. As used in this Act: 14 "Certificate" means a document that certifies that the 15persons named on the certificate have established a civil union 16in this State in compliance with this Act. 17 "Civil union" means a legal relationship between 2 persons, 18of either the same or opposite sex, established pursuant to 19this Act. 20 "Department" means the Department of Public Health. 21 "Officiant" means the person authorized to certify a civil 22union in accordance with Section 40. SB1716 Enrolled- 2 -LRB096 04132 AJO 14173 b 1 "Party to a civil union" means a person who has established 2a civil union pursuant to this Act. "Party to a civil union" 3means, and shall be included in, any definition or use of the 4terms "spouse", "family", "immediate family", "dependent", 5"next of kin", and other terms that denote the spousal 6relationship, as those terms are used throughout the law. 7 Section 15. Religious freedom. Nothing in this Act shall 8interfere with or regulate the religious practice of any 9religious body. Any religious body, Indian Nation or Tribe or 10Native Group is free to choose whether or not to solemnize or 11officiate a civil union. 12 Section 20. Protections, obligations, and 13responsibilities. A party to a civil union is entitled to the 14same legal obligations, responsibilities, protections, and 15benefits as are afforded or recognized by the law of Illinois 16to spouses, whether they derive from statute, administrative 17rule, policy, common law, or any other source of civil or 18criminal law. 19 Section 25. Prohibited civil unions. The following civil 20unions are prohibited: 21 (1) a civil union entered into prior to both parties 22 attaining 18 years of age; 23 (2) a civil union entered into prior to the dissolution SB1716 Enrolled- 3 -LRB096 04132 AJO 14173 b 1 of a marriage or civil union or substantially similar legal 2 relationship of one of the parties; 3 (3) a civil union between an ancestor and a descendent 4 or between siblings whether the relationship is by the half 5 or the whole blood or by adoption; 6 (4) a civil union between an aunt or uncle and a niece 7 or nephew, whether the relationship is by the half or the 8 whole blood or by adoption; and 9 (5) a civil union between first cousins. 10 Section 30. Application, license, and certification. 11 (a) The Director of Public Health shall prescribe the form 12for an application, license, and certificate for a civil union. 13 (b) An application for a civil union shall include the 14following information: 15 (1) name, sex, occupation, address, social security 16 number, date and place of birth of each party to the civil 17 union; 18 (2) name and address of the parents or guardian of each 19 party; 20 (3) whether the parties are related to each other and, 21 if so, their relationship; and 22 (4) in the event either party was previously married or 23 entered into a civil union or a substantially similar legal 24 relationship, provide the name, date, place and the court 25 in which the marriage or civil union or substantially SB1716 Enrolled- 4 -LRB096 04132 AJO 14173 b 1 similar legal relationship was dissolved or declared 2 invalid or the date and place of death of the former spouse 3 or of the party to the civil union or substantially similar 4 legal relationship. 5 (c) When an application has been completed and signed by 6both parties, applicable fees have been paid, and both parties 7have appeared before the county clerk, the county clerk shall 8issue a license and a certificate of civil union upon being 9furnished satisfactory proof that the civil union is not 10prohibited. 11 (d) A license becomes effective in the county where it was 12issued one day after the date of issuance, and expires 60 days 13after it becomes effective. 14 (e) The certificate must be completed and returned to the 15county clerk that issued the license within 10 days of the 16civil union. 17 (f) A copy of the completed certificate from the county 18clerk or the return provided to the Department of Public Health 19by a county clerk shall be presumptive evidence of the civil 20union in all courts. 21 Section 35. Duties of the county clerk. 22 (a) Before issuing a civil union license to a person who 23resides and intends to continue to reside in another state, the 24county clerk shall satisfy himself or herself by requiring 25affidavits or otherwise that the person is not prohibited from SB1716 Enrolled- 5 -LRB096 04132 AJO 14173 b 1entering into a civil union or substantially similar legal 2relationship by the laws of the jurisdiction where he or she 3resides. 4 (b) Upon receipt of the certificate, the county clerk shall 5notify the Department of Public Health within 45 days. The 6county clerk shall provide the Department of Public Health with 7a return on a form furnished by the Department of Public Health 8and shall substantially consist of the following items: 9 (1) a copy of the application signed and attested to by 10 the applicants, except that in any county in which the 11 information provided in a civil union application is 12 entered into a computer, the county clerk may submit a 13 computer copy of the information without the signatures and 14 attestations of the applicants; 15 (2) the license number; 16 (3) a copy of the certificate; and 17 (4) the date and location of the civil union. 18 (c) Each month, the county clerk shall report to the 19Department of Public Health the total number of civil union 20applications, licenses, and certificates filed during the 21month. 22 (d) Any official issuing a license with knowledge that the 23parties are thus prohibited from entering into a civil union 24shall be guilty of a petty offense. 25 Section 40. Certification. A civil union may be certified: SB1716 Enrolled- 6 -LRB096 04132 AJO 14173 b 1by a judge of a court of record; by a retired judge of a court 2of record, unless the retired judge was removed from office by 3the Judicial Inquiry Board, except that a retired judge shall 4not receive any compensation from the State, a county, or any 5unit of local government in return for the solemnization of a 6civil union and there shall be no effect upon any pension 7benefits conferred by the Judges Retirement System of Illinois; 8by a judge of the Court of Claims; by a county clerk in 9counties having 2,000,000 or more inhabitants; by a public 10official whose powers include solemnization of marriages; or in 11accordance with the prescriptions of any religious 12denomination, Indian Nation or Tribe or Native Group, provided 13that when such prescriptions require an officiant, the 14officiant be in good standing with his or her religious 15denomination, Indian Nation or Tribe or Native Group. The 16person performing a civil union shall complete the certificate 17and forward it to the county clerk within 10 days after a civil 18union. 19 Section 45. Dissolution; declaration of invalidity. Any 20person who enters into a civil union in Illinois consents to 21the jurisdiction of the courts of Illinois for the purpose of 22any action relating to a civil union even if one or both 23parties cease to reside in this State. A court shall enter a 24judgment of dissolution of a civil union if at the time the 25action is commenced it meets the grounds for dissolution set SB1716 Enrolled- 7 -LRB096 04132 AJO 14173 b 1forth in Section 401 of the Illinois Marriage and Dissolution 2of Marriage Act. The provisions of Sections 401 through 413 of 3the Illinois Marriage and Dissolution of Marriage Act shall 4apply to a dissolution of a civil union. The provisions of 5Sections 301 through 306 of the Illinois Marriage and 6Dissolution of Marriage Act shall apply to the declaration of 7invalidity of a civil union. 8 Section 50. Application of the Civil Practice Law. The 9provisions of the Civil Practice Law shall apply to all 10proceedings under this Act, except as otherwise provided in 11this Act. A proceeding for dissolution of a civil union or 12declaration of invalidity of a civil union shall be entitled 13"In re the Civil Union of ... and ...". The initial pleading in 14all proceedings under this Act shall be denominated a petition. 15A responsive pleading shall be denominated a response. All 16other pleadings under this Act shall be denominated as provided 17in the Civil Practice Law. 18 Section 55. Venue. The proceedings shall be had in the 19county where the petitioner or respondent resides or where the 20parties' certificate of civil union was issued, except as 21otherwise provided herein, but process may be directed to any 22county in the State. Objection to venue is barred if not made 23within such time as the respondent's response is due. In no 24event shall venue be deemed jurisdictional. SB1716 Enrolled- 8 -LRB096 04132 AJO 14173 b 1 Section 60. Reciprocity. A marriage between persons of the 2same sex, a civil union, or a substantially similar legal 3relationship other than common law marriage, legally entered 4into in another jurisdiction, shall be recognized in Illinois 5as a civil union. 6 Section 90. Severability. If any part of this Act or its 7application to any person or circumstance is adjudged invalid, 8the adjudication or application shall not affect the validity 9of this Act as a whole or of any other part.