Estate Planning for a transgender client

Spencer Bergstedt (Partner, Bergstedt Wolff P.S., Lynnwood, Washington) has written an article entitled Estate Planning and the Transgender Client, 30 W. New Eng. L. Rev. 675 (2008).

Here is a summary of the article:

This Article will also provide some basic information about transgender people and their estate planning needs, along with suggestions for how to effectively address the unique needs of transgender clients. … Gender marker changes on legal documentation, such as driver’s licenses and birth certificates, are a more tricky proposition than name changes, but are incredibly vital as one’s legal gender designation has the potential to impact many areas of life: the ability to marry, the ability to travel, the ability to inherit, insurance coverage, one’s enrollment in the draft, where one might be incarcerated, and more. a. … One of the major reasons is that, under the REAL ID Act, states are directed to develop state identifications and policies for issuance of those documents that meet the requirements set forth by the Department of Homeland Security. … In all cases, whether it is a marriage, civil union, domestic partnership, or reciprocal beneficiary relationship, none of these state-recognized relationships afford any protections or rights on a federal level, such as with regard to taxation, social security benefits, Medicaid, Medicare, or immigration. … A good example of courts’ unwillingness to recognize the new gender of transgender persons is In re Marriage of Simmons. … Court decisions predicated on whether or not someone has had genital surgery and can have “normal” sexual relations reinforce and further an artificial hierarchy between transgender people who have the surgery and those who have not. … Until the courts and legislatures take a more reasoned approach to addressing the legal gender status of transgender people and take that status into account in the application of marriage and domestic partnership laws, attorneys must take precautionary steps in assisting transgender people and their spouses or partners to maintain their identity and to ensure that their estates pass to one another unfettered.