Wills, Trusts & Estates Prof Blog

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

Friday, March 1, 2019

Article on I Knew Him as my Daughter: The Impact of Gender Changes on Sex-Based Benefits From Class Gifts

TtulawMegan McIntyre recently published an Article entitled, I Knew Him as my Daughter: The Impact of Gender Changes on Sex-Based Benefits From Class Gifts, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 191-212 (2018). Provided below is the introduction to the Article.

From Hollywood to hometowns, through public media and private conversations, a new wave of information surrounding gender identity and gender equality has brought attention to the unique legal issue transgender individuals face. Transgender individuals are emerging from the margins of out society to challenge traditional cultural norms and the legal institutions that support them. While some critics note that since 2014 we have reached a "transgender tipping points," there is no questions that transgender equality represents a new frontier in the American civil rights movement. As social activists continue to come forward and inspire change, it is important for lawyers to familiarize themselves with the distinct battles this misunderstood minority faces to netter protect their rights and fight against potential discrimination.

This comment examines the shortfall of rights and remedies available to transgender individuals by looking through the lens of a simple estate plan that creates a sex or gender-based class gift. When a testator creates a class gift based on birth, biology, or boy versus girl, concerns about a potential beneficiary's legal gender becomes increasingly relevant. This issue highlights the need to grant wider legal recognition to the transgender community by implementing a system that will give individuals more freedom to choose and to change their legal gender identities.

Section II.A provides background material including definitions and brief explanations of relevant terminology. Following the introduction of terminology, Part III examines the current legal climate relating to transgender rights, including the status of transgender spouses and the ability for transgender individuals to update their gender identities on legal documents. Part IV illustrates the approaches courts use to construe wills to ascertain the testator's intent when parts of the will are ambiguous. Using Part III and Part IV's framework, Part V will apply the general rules of will construction in a context in which the legal gender of an individual is uncertain.

Finally, Part VI of this comment proposes legislation that will bring more certainty to transgender individuals facing the kind of dilemma Jason Benner experienced. This section will identify useful drafting tools that lawyers can use to dispose of the need for courts to determine whether the testator intended the individual to be a beneficiary post gender transformation. Additionally, this section will address the need for states to amend estate statutes to specifically provide guidelines for courts to use in situations in which a change in a beneficiary's gender conflicts with the testator's characterization of the individual in his or her will. Courts should adopt a policy to defer to an individual's social transition to grant relief to transgender individuals who are not immediately identifiable in a will.


Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Wills | Permalink


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