Issues and Rights of Transgendered Individuals in Estate Planning
On June 15, 2020, the United States Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia that protected transgendered individuals from workplace discrimination. This has brought the rights of transgendered individuals and, more broadly, rights of the LGBTQIA+ community to the forefront of the national consciousness. This article examines some of the issues facing transgendered individuals. For the purposes of this article, the term “transgender” applies to those “whose gender identity differs from the sex they were assigned at birth people.” This article is not intended to be a technical or in-depth analysis of transgendered individuals, but rather a cursory overview of a specific legal issue confronting transgendered legatees.
What happens when a testator executes a will, but a legatee undergoes a sex change, name change, or otherwise changes identity? The first page of a will typically includes a summary of the testator’s nuclear familial relationships, e.g., “my ‘spouse’ is Jane Doe. I have one (1) children now living, namely John Doe.” Accordingly, testators will designate legatees by familial or legal relationships. Under specific bequests in the will, a testator may list a gift as “to my son, John Doe, I give my 1967 Ford Shelby Mustang GT500.” Stating the legal relationship is a way in which the drafter can avoid ambiguity regarding specific gifts, particularly in families with common names. It is easy to see the confusion that may result in a gift to “Mary Smith” without further clarification. The Social Security Administration reported that the name “Mary” has been used over 3.3 million times from 1919 to 2018, which is more than double the second-most common name used for individuals assigned female at birth.
Using the familial or legal relationship is intended to add a degree of specificity to avoid ambiguity and confusion, but it is likely to produce the opposite effect if the legatee has undergone a sex change operation or otherwise identifies by a different sex or gender than that which was assigned at birth. Ambiguities in legal documents come in two forms: patent ambiguity and latent ambiguity. A patent ambiguity is apparent from the document itself when the words themselves cause confusion, e.g., “I gift my 1967 Ford Shelby Mustang GT500 to my nephew” when the testator owns no such car. A latent ambiguity occurs when confusion arises outside the document, e.g., “I give my 1967 Ford Shelby Mustang GT500 to my nephew”, but the testator has more than one nephew.
This ambiguity is exacerbated when a name change accompanies a sex or identification change operation and the will provides a gift “to my son, John Doe”, but the testator no longer has a child that identifies as male and who no longer uses the name John Doe. Such a gift would now be more properly described “to my daughter, Jill Doe.”
The United States Supreme Court rendered an earlier landmark decision in Obergefell v. Hodges that required all states to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities. Taken together, Bostock and Obergefell enable transgender individuals to inherit from the estate of their spouse, receive death benefits and establish child custody rights in dissolved marriages that may have been considered void. These decisions provide the long-delayed and much needed legal recognition for transgendered individuals that put them on equal legal footing with non-transgendered heterosexual couples. Because both decisions have only been rendered within the last five years, there is not yet sufficient case law interpreting ambiguous wills and transgender legatees.
The Illinois Supreme Court established the four-corners rule as the test to be used by Illinois courts in cases involving issues arising under the parol evidence rule and interpretation. If a will is strictly interpreted, the transgendered individual would not receive the gift of the 1967 Ford Shelby Mustang GT500. The “four corners” rule prohibits the introduction of any extrinsic evidence outside the four corners of the document itself. The precedents set forth have not been directly overturned, but Illinois courts have taken a more liberal approach to interpretation. This liberal approach has not been uniformly adopted and a conflict exists with respect to interpretation. Thus, an issue of ambiguity is largely resolved by judicial discretion and further guidance and interpretation from the Illinois Supreme Court is necessary.
What happens when a testator does not update his or her will, and the gift of the 1967 Ford Shelby Mustang GT500 to “my son, John Doe” lapses because “my son, John Doe” is now “my daughter, Jill Doe”? This scenario is rife with interpretation issues. The testator’s intent and words in the document are both ambiguous. Did the testator know of “John’s” transition to “Jill.” Was the transition before or after the execution of the will? Did the testator intend to disinherit “Jill”?
Under the current set of rules, if the testator’s intent is unambiguous in the document itself, no further evidence is likely to be introduced. In the example above, there is significant ambiguity regarding intent. Thus, the four corners of the document will not resolve the matter. The court may require extrinsic evidence to clarify whether the testator intended the gift to lapse or to otherwise disinherit “my son”. Did the testator disapprove of the life choices of the testator’s only child? Did the testator intend to execute a codicil or amend and restate the will to clarify the gift to the beloved child, but life circumstances intervened?
In 2005, an Illinois appellate decision required the transgendered individual to be bound by their sex and identity at birth. Given the nascency of the Supreme Court’s decisions, there will likely be more cases allowing higher courts to establish new legal principles of interpretation regarding the rights of transgender legatees.
The Obergefell and Bostock decisions recognize the rights of the LGBTQIA+ community more broadly. In light of this newfound recognition, there is an expanded legal basis for bringing more contests interpreting will provisions. The idea and spirit behind these decisions lends support to the legal theory that Illinois courts will begin to recognize the transgendered individual’s sex or gender self-identification rather than that which was assigned at birth as stated in the 2005 Illinois decision. Evidence may nevertheless be required to address the patent or latent ambiguities that arise from a sex, gender and/or name change that occurs after execution of the will, but there is support for its introduction so that a will better aligns with a testator’s intent.