Planning for a Modern Family: Transgender, Non-Binary, and Gender Non-Conforming Heirs

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Lauren Pitman

Author, Attorney

When you’re planning for an heir whose gender does not align with the gender they were assigned at birth, you might be concerned about how to make sure your heir can legally inherit according to your wishes. An attorney can easily help you to make sure your estate plan is inclusive, and that your heir–whether your child, a niece or nephew or someone else in your life–doesn’t incur any difficulties in the process.

Here are three ways you can create a gender-inclusive estate plan that works for you:

  1. Remove gender references and gendered pronouns when speaking about your heirs. This also includes removing gendered terms such as “son” or “daughter” and “husband” or “wife” when it’s just as easy to use the term “child” or “spouse.” Many attorneys avoid these terms in certain cases already, in order to make sure your estate plan is inclusive to all your heirs. You can advise your attorney to pay attention to these references when it comes to a particular heir who identifies with they/them pronouns or with pronouns other than those assigned at birth.
  2. Ensure correct legal names are on all documents and beneficiary documents. While you want to be considerate of your heir’s desires, you also must think about the confines of the law. When a person rejects the name they were given by their parents, often called a “dead name,” the name can be a painful reminder of being misgendered. While it’s important to honor the person’s chosen name, you want to confirm that they will still be able to claim the assets you have provided for them. You may want to remove the dead name in your legal documents but only do so if the person has legally changed their name and can be sure to provide documentation that proves their identity. There are different rules in different states about the legal documentation an heir needs to claim an asset, ranging from birth certificate to driver’s license, so check the laws of your state and work with an attorney who knows them well in order to ensure a smooth transition.
  3. Know how gender markers might affect legality. Changing a name is often easier than changing the gender markers on identification such as a driver’s license or passport, which requires documentation from medical doctors in many cases. This too depends on the state, and some states allow a non-binary option as a gender marker. Identification issues could prevent an heir from inheriting what you had intended for them.

Too often, members of the LGBTQ+ community have faced difficulties when it comes to estate planning, and taking a proactive approach is the best way to protect the people you love from hardship or discrimination.

The law relies heavily on the use of language, and our language around gender is changing quicker than the law itself. Still, there are easy ways to keep your language gender-neutral and to respect the wishes of a transgender, non-binary, or gender non-conforming loved one, and a good attorney will understand exactly how to make this work in your plan.

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Disclaimer: The information contained in this article should not be considered tax or legal advice and is not a substitute for such advice. State and federal laws change frequently and the information in this article may not reflect your own state's laws or the most recent changes in state or federal law. For current tax and legal advice, please consult with an accountant or attorney licensed to practice in your state.
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