Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, April 22, 2013

Sex Change Did Not Dissolve Marriage

DivorceA woman from Michigan, Devon Pearl Burnett, married her husband in 1984. She lived with her husband until 2005, two years after he decided to undergo a gender reassignment surgery and become a woman. At the time Devon was suffering from dementia and so her children filed for divorce. Her husband, now named Bobbie Eliza Burnett, challenged the authority of their children to file for divorce on behalf of their mother. The children was the conservators of their mother who was incapacitated. 

The Michigan Court of Appeals affirmed the ruling of the lower court in Burnett v. Burnett. First, the court held that the conservator did have the authority to act on behalf of their ward. When that argument failed, Bobbie tried to argue that the courts lacked jurisdiction to hear the case because of Michigan's same-sex marriage laws. In Michigan, a marriage is defined as being between a man and woman; therefore, their marriage did not exist and by granting the divorce the court would inadvertently recognize the validity of the same-sex marriage. The courts rejected her arguments reasoning that the couple entered into a valid marriage contract before the sex change operation and that one spouse's unilateral decision to change gender could not end the marriage without the court's involvement.

See Jeff D. Gorman, Sex Change Didn't 'Magically Dissolve' Marriage, Courthouse News, Apr. 19, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.


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