Friday, April 13, 2018
Article on A Woman in Life, but a Man After Death: Protecting the Postmortem Identities of Transgender Individuals
Delaney Naumann published an Article entitled, A Woman in Life, but a Man After Death: Protecting the Postmortem Identities of Transgender Individuals, 10 Est. Plan. & Comm. Prop. L.J. 181 (2017). Provided below is an abstract of the Article:
Contemplating death is not a pleasant experience for most people. However, for the transgender community, it is becoming increasingly more important to consider from an estate planning perspective. Throughout their lives, transgender people face numerous challenges regarding their identities. These challenges can continue after a transgender individual's death if he or she is not buried according to their gender identity. Transgender individuals run the risk of having their surviving family members bury them in an undignified manner if the transgender individual passes away without specifically documenting instructions for their burial.
For instance, in 2014, a transgender woman named Jennifer Gable passed away suddenly from an aneurysm. She was thirty-two years old, otherwise in good health, and had not executed a formal document stating her wishes for her funeral arrangements. Consequently, under Idaho intestacy law, control of the disposition of Jennifer's body went to her father, who decided to bury her as a man.
Funeral guests were horrified when they looked into the open casket and saw that the funeral home had cut Jennifer's hair short, dressed her in a suit, and referred to her by male birth name, which Jennifer had legally changed well before her death. The funeral home stated that because Jennifer's death certificate registered her as “male,” it followed standard procedure of dressing the deceased in a suit. One of Jennifer's friends described the ordeal as an “erosion of her identity.”
While this tragedy could have possibly been avoided if Jennifer had a last will and testament, 55% of Americans die intestate each year. Whether it be due to cost, age, or pure laziness, people often pass away without creating any sort of estate plan. Dying intestate is particularly troubling for the transgender community, whom face the risk of having their family members not burying them according to gender identity. Nevertheless, there are two legal solutions that can simplify the task of planning for death and help ensure gender identity is respected after death: disposition of remains statutes and the Respect After Death Act (RADA).
This comment will discuss the distinct needs of a transgender client in planning for death. First, this comment will present a background and explanation of important transgender-related terms to promote a comprehensive understanding of the transgender experience. Second, this comment will provide a brief synopsis of the relevant estate planning laws as they currently stand. Third, an in-depth discussion of disposition statutes and the RADA will follow. Finally, this comment will address the need for uniform laws regarding disposition and identity recognition by proposing legislation to resolve the issue of transgender individuals being misgendered upon death.