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33 Quinnipiac Prob. L.J. 147 (2019-2020)
The Dilemma of the Transgender Heir

handle is hein.journals/qplj33 and id is 165 raw text is: 












QUINNIPIAC PROBATE


         LAW JOURNAL


VOLUME33                                2020                                  ISSUE 2




           THE DILEMMA OF THE TRANSGENDER HEIR

                                 CARLA   SPIVACK*

     I. INTRODUCTION

         It has't happened yet, but it's only a matter of time. A will leaves a gift to
a testator's daughter, Jill, or a trust benefits my grandsons.  The  beneficiary,
or a member   of the beneficiary class, is a transgender person' who has transitioned
to the opposite  sex  since the instrument  was  executed.  The  other beneficiaries,
seeing  a  chance  to  increase their  share, argue  that the  daughter   or son
mentioned   in the devise no longer exists and the gift fails. The named heir angrily
responds  that he or she is the same person the testator wished to benefit in the will.
How   should  will and  trust law   its canons of construction,  its default rules, its
presumptions   -solve   this problem?

         For  readers who   question the  likelihood of such  a scenario:  trusts and
estates professors-and practitioners-well know, where money is involved,
family  members   will contest  a will for any reason  and will act with  astounding



* Professor of Law and Director of Certificate in Estate Planning, Oklahoma City University School of Law.
My thanks to Naomi R. Cahn, Bridget Crawford. Shannon Roesler and Allison Anna Tait for their extremely
valuables suggestions and feedback, as well as the other participants in the Southeastern Association of Law
Schools Annual Meeting Trusts and Estates Session, Stephen R. Alton, Deborah S. Gordon, Victoria J.
Haneman, Browne Lewis, Alberto Lopez, Phyllis Tait and Reid Wiesbord. I am also grateful to my students
in the Summer Term Wills, Trusts and Estates class at Suffolk University Law School in 2019, for their
lively and inspiring discussion of this topic. I also thank my colleague Michael P. O'Shea, for his cogent
impromptu explanation of Foucault and power.
1 Throughout this article, I use the term transgender to refer to a person whose gender identity or gender
expression differs from the gender assigned to them at birth and appearing on their birth certificate. GLAAD
Media Reference Guide - Transgender, GLAAD, https://www.glaad.org/reference/transgender (last visited
Nov. 6, 2019). I use the term transition to refer to the process a transgender person might choose to
undergo to alter their birth sex, whether involving a range of possible legal, personal, and medical
interventions, including telling one's family, friends, and co-workers; using a different name and new
pronouns; dressing differently; changing one's name and/or sex on legal documents; hormone therapy; and
possibly (though not always) one or more types of surgery. Id.

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