First Steps in Estate Planning for Transgender Client

LBGT Pride

Estate planning is for everyone, but unfortunately, there isn’t a vast amount of estate planning resources available to transgender individuals, or couples. This article is one of a two-part series that will cover the steps and considerations a transgender client needs to know to properly execute an estate plan.

An area of great concern for a transgender client is appropriate identity documentation.

It is very important that passports, driver’s licenses, social security records, and other forms of identification, reflect the way they see themselves. Accurate and consistent ID is absolutely necessary to open bank accounts, secure employment, and travel.

The National Center for Transgender Equality says that many states and the federal government have intrusive and burdensome requirements. Only one-fifth of transgender individuals who have transitioned have been able to update all their IDs and records.

Here is a very useful working definition of “transgender” taken from A. Spencer Bergstedt’s Western New England Law Review article, “Estate Planning and the Transgender Client”:

“For the purposes of this Article, the term "transgender" is meant to be broadly interpreted to include transsexuals, crossdressers, gender-queer, and androgynous persons, rather than as the more restrictive use often found in the legal system where transgender tends to be used interchangeably with a transsexual. A transsexual person is someone who uses medical or surgical intervention to alter his or her body to match a gender opposite to his or her assigned birth sex. When discussing transsexual people, the term will be used specifically. The terms transwomen or MTF are used for male-to-female transsexuals and the terms transmen or FTM are used for female-to-male transsexuals. An intersexed person is someone who has both male and female physical or genetic characteristics. When discussing intersex people, the term will be used specifically.”

Name Changes

State law typically governs name changes, and adjustments to Birth Certificates and Driver’s Licenses. Each state has different requirements for updating these important documents. It is important to review your state’s laws to make sure that you have successfully updated these documents.

Some states require a court order before changing any state identification documents. Other states have a surgical requirement that must be attested to by a physician. This is problematic because not everyone wants sexual reassignment surgery, not to mention that not everyone can afford it.

Name changes are usually granted as long as it is clear that the change is not fraudulent. Some states even have what is called “common law name changes” where you simply start using a different name.

Advocates point out, that when ID documents do not match a common law name it can open the door to judgment and violence. This is a harsh reminder that trans people often face discrimination, brutality, and social rejection. Getting the ID documents correct is absolutely essential.

Birth Certificate

Birth certificates are the hardest documents to change. The argument is that when the certificate is issued it attests to the facts at that time. The view in these jurisdictions is that “you can’t change history.” According to Lamdalegal, Tennessee is the only state that has a statute specifically forbidding the correction of gender designations on birth certificates for transgender people. Idaho and Ohio also will not change the gender on a birth certificate.

Most jurisdictions require a court order to change a birth certificate and sometimes require physician certification of sexual reassignment surgery. According to Lisa Leff, a writer for Huffington Post, getting a new birth certificate still requires proof of surgery in all but three states: Washington, California, and Vermont.

It is important to understand and complete these initial steps in order to create a thorough estate plan.