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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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