Wills, Trusts & Estates Prof Blog

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

Saturday, June 8, 2019

Note on Transgender Beneficiaries: In Becoming Who You are, Do You Lose the Benefits Attached to Who You Were?

TransAshleigh C. Rousseau recently published a  Note entitled, Transgender Beneficiaries: In Becoming Who You are, Do You Lose the Benefits Attached to Who You Were?, 47 Hofstra L. Rev. 813-859 (2018). Provided below is an introduction of the Note.

Suppose William Smith, father of Joseph Smith, executes a will to leave his estate to his children. In his will, the phrase "to my son, Joseph" is used, preceding a bequest for the property. Before William dies, Joseph embraces her transgender identity, obtains a lawful name change to Julia, obtains a lawful gender marker change, and undergoes sex confirmation surgery. William dies, and his estate is divided. Is Julia still entitled to Joseph's portion of William's estate? In embracing her transgender identity, is she deprived of her right to inherit? 

The transgender identity and its relatives (transsexualism, non-conforming gender identities, and the like) are often misunderstood by the general population. As a result, transgender individuals are subject to both systemic and individual discrimination. It is in the midst of this misunderstanding that transphobia is born. Transphobia is "the ignorance, fear, dislike, and/or hatred of trans* people, which may be expressed through name-calling, disparaging jokes, exclusion, rejection, harassment, violence, and many forms of discrimination." Transphobic behaviors also include refusing to use a person's preferred noun/pronoun and the denial of services, employment, housing, and other essentials. M. Dru Levasseur states that "the source of much transphobia is a fear of difference." Cisgender individuals often maintain the lurking notion that transgender individuals are trying to be someone they biologically are not, and thus have difficulty accepting transgender individuals for who they identify as. As a community, we must recognize and respect the self-identities that transgender individuals put forth in order to break down these walls that isolate and marginalize the transgender community. Contrary to some conservative beliefs, transgender individuals do not violate the social order, nor is gender confined within the boundaries of binary sex that society recognizes. In order "for transgender people to be recognized as full human beings under the law, the legal system must make room for the existence of transgender people - not as boundary-crossers, but as people claiming their birthright as a part of the natural variation of human sexual development."

This Note explores the implications of not only a name change but also a change in gender for a beneficiary named in a will using their previous identity. Raising a question, may a transgender individual accept their bequest under the will when a decedent names a transgender individual as a beneficiary and uses that individual's birth name and gender? This Note will first talk about being transgender and the social and legal obstacles that transgender individuals face on a regular basis. It will then explore the obstacles presented if their transition occurred after a will was written using their previous identity.


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