What if William Smith executes a will using the phrase “to my son, Joseph.” Before William dies, Joseph embraces her gender identity as a woman and lawfully changes her name to Josephine. After William’s death, is Josephine still entitled to the right to inherit under the will, or did embracing her gender identity deprive her of this right? This article, by Ashleigh Rousseau, explores what happens to William, or any decedent, who names a beneficiary in a will by using the beneficiary’s name and gender reference, and then the beneficiary subsequently changes their gender identity, as well as the beneficiary’s legal name, after the will is written.
For background, the author first explores the different terms and misconceptions related to the gender transitioning process—such as the difference between gender identity versus sexual orientation and how the two are sometimes inappropriately confused. She explains that, for most transgender people, “their gender identity does not match the sex that they were assigned to at birth.” According to the article, this is sometimes referred to as “brain sex,” to reflect the fact that gender identity is “hard-wired into the brain.”
As far as the gender transition process, the author highlights that often, it’s not an easy road to align the physical gender with the “brain sex.” Many transgender individuals suffer bias and discrimination, and the article cites alarming statistics that reflect higher suicide rates and biases in the workplace among this community. Accordingly, the article calls for legislatures to develop better laws to protect the transgender community and identifies instances in which personal biases may have also influenced the judicial system.
It notes that Obergefell v. Hodges, 135 S.Ct. 2071 (2015) was a landmark decision that finally recognized same-sex marriage as valid in all states. Obergefell is particularly notable for transgender beneficiaries when it stated that: “The Constitution promises liberty to all within its reach, a liberty that includes specific rights that allow persons, within a lawful realm, to define and express their identity” (emphasis supplied).
The author examines several cases before Obergefell in which transgender individuals were denied spousal benefits because the state courts determined that the marriage to transgender individuals was void based on the gender assigned to individuals at birth. Those decisions rested on the refusal to recognize the new identity as a means for invalidating the marriage in states that failed to recognize same sex marriages. Ironically, she noted that the logic used in those early cases to take away benefits may now be used as possible precedent to argue that transgender individuals should be entitled to the estate apportioned benefits assigned to them under their previous identity.
The next question is, “What if William was not supportive of Josephine’s identity and therefore did not change his will to reflect his feelings on the issue?” A strict interpretation of the plain meaning rule would limit the inquiry of the testator’s intent to the four corners of the will and prohibit the use of extrinsic evidence unless there’s an ambiguity. In addition, some states have a no reformation rule that prohibits courts from reforming a will to correct it to reflect the testator’s intent. In states that use the plain meaning rule or the no reformation rule, transgender beneficiaries may lose their rights to the decedents’ property because their name and sex don’t align with the language of the will.
On the other hand, the author puts forth several legal theories that may be used by a transgender beneficiary to claim the property was meant to flow to the intended beneficiary despite the gender change. For example, courts have allowed a personal use exception, in which the testator “habitually used the same words to connote a specific meaning,” such as when a testator uses a nickname rather than a legal name. Using this exception, transgender beneficiaries could claim that the intent to give to them was evidenced by the language that the testator believed was correct at the time the will was executed. The article examines other arguments as well, including cases involving name changes, misuse of pronouns and inclusion of after-born children and suggests that courts could use holdings in these cases to develop a more uniform approach.
The author recognizes that this issue presents “uncharted waters” and advises that drafters preemptively solve the problem by adding a clause to a will or codicil that addresses testator intent. The article includes a sample clause to this effect. The author concludes by saying that, regardless of sex or name assigned at birth, the transgender beneficiary is still the “same legal person” after embracing their gender identity. According to the article, “Joseph and Josephine are not two souls trapped within a human body at birth. Josephine was there all along, growing and evolving into the woman that she was meant to be.”