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Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinn. Prob. L.J. 147 (2020), available at HeinOnline.

A goal of professors is, or should be, to think about legal issues that have not yet arisen but that are likely to arise in the future. By thinking of the issues before they arise, we can work to change the law before courts are forced to deal with the issue with little guidance on a case-by-case basis.

In her thought-provoking article, Professor Carla Spivack identifies the issue of a transgender heir and a bequest that did not contemplate a gender change. Specifically, she identifies a situation in which an elderly relative leaves property to “my daughter” or to “my grandsons,” but the intended recipient no longer identifies as a female, in the case of the daughter, or a male, in the case of a grandson, at the time of the elderly testator’s death. The concern is that other beneficiaries may then seek to invalidate the gift by arguing that the testator did not have a daughter or a particular grandson at the time of death.

Part I of the article focuses on the “expressive function” of law, or the law’s power to make value statements to encourage change or to deter behavior. In the context of transgender individuals, Professor Spivack argues that the law should play an expressive role by expressly including transgender heirs for inheritance purposes into the notion of what constitutes a “family.”

Professor Spivack notes that the issue of ambiguous gifts to transgendered heirs is likely to arise with a growing level of frequency in the future. The issue is particularly important because transgender people have higher unemployment and poverty rates than the population as a whole. The intergenerational transfer of wealth protects people from living precariously, and it determines what society will look like, who has access to social goods, and who wields political power. While it is possible to draft around issues with transgender heirs by using gender neutral terms such as “my child” or “my grandchildren,” gendered descriptions often appear in form documents and in the idiosyncratic wills of wealthy individuals. In short, we need to assume that people will not always draft around it, and the law should provide a solution for when they fail to do so.

In Part II of her article, Professor Spivack attempts to fit the transgender heir into existing will interpretation doctrines. She ultimately concludes that all attempts to do so fail. The problem is that current doctrines would bog courts down with considering complex philosophical questions related to the meaning of gender and identity. Instead, Professor Spivack argues, the focus should be on creating a succession law presumption that focuses on the decedent’s intent.

First, Professor Spivack analyzes the current doctrine of ambiguity. She notes that courts traditionally have allowed for the consideration of extrinsic evidence about intent with a latent (not apparent from the text alone) ambiguity. Now, most courts allow extrinsic evidence to be considered for both latent and patent (obvious from the text) ambiguities. Arguably, a person who has changed gender creates an ambiguity. The issue is that somebody could argue that no ambiguity exists because the person identified in the bequest no longer exists. For example, a person who was once a son named Alex is not the same person as a daughter named Alexa. The son named Alex no longer exists, and the bequest then lapses. While this argument may ultimately fail, it mires courts in the question of whether a change in gender is so fundamental that the former person can be said to no longer exist.

Second, Professor Spivack analyzes the doctrine of reformation of mistakes. The problem is that the mistake to be reformed must concern some fact or law at the time the will was executed. The “mistake of fact” here would be an incorrect belief about the beneficiary’s gender identity at the time the will was executed. This gets into questions about the nature of gender and leads us to the same question, as with ambiguities, about the question of identity. Once again, the person contesting the will will argue that the transgender child is not the same person identified in the document, leading to a lapsed gift.

Third, Professor Spivack analyzes the pretermitted heir doctrine, which protects children from disinheritance if they were born or adopted after the will’s execution. In general, the doctrine creates a presumption that the testator simply forgot to update the will and would not have intended to disinherit the child. With transgender individuals, this doctrine is far more challenging because there often isn’t a discrete point in time, such as with childbirth, when gender changes.

Fourth, Professor Spivack considers the doctrine of “fact of independent significance.” Again, she concludes that this doctrine is insufficient to resolve the issue. The basic doctrine deals with devises that are otherwise outdated because of life events following the document’s execution. For example, a bequest to “my children” should include subsequently born children because the birth of a child is an objective event that would take place regardless of the disposition in the will. The problem with a transgender individual is that a contestant would simply argue that the person identified in the will no longer exists, again leading us to a lapse.

Finally, Professor Spivack looks at two more simple concepts, name changes and provisions in the will, to argue that the transgendered heirs should inherit. Courts commonly allow people who have changed their names to inherit because there is no question that they are the same people as the person identified in the will. That does not resolve the question of whether a person who has changed gender is, in fact, the same person. Could the changing of gender so fundamentally alter who a person is that he or she is no longer the same person? Similarly, wills often contain boilerplate provisions that state that words should not be construed to exclude a different gender. Such provisions also do not resolve the deeper issue of what it means to change gender and whether the person identified is the same person if his or her gender has changed.

In Part III of her article, Professor Spivack focus on the meaning of gender and the cultural basis for the “gender binary.” Here, she gets into the core issue that complicates using current doctrines to resolve these issues. Specifically, what is the meaning of gender? Culturally, at least in the United States in recent memory, men and women are often viewed as opposites. Historically and in other cultures, that has not necessarily been the case. Some cultures have historically had traditions of fluidity between genders, including a third gender. Now, several states, as well as Washington, D.C., now recognize a third gender, and one court in Oregon has recognized a nonbinary gender identity.

In part IV, Professor Spivack focuses on the law’s role in constructing gender. She notes that current legal discourse in the U.S. generally naturalizes the gender binary. This has helped to establish rigid genders as constructed parts of our society. Professor Spivack does not deny the reality that individual identities are often lived at one of two gender poles. She merely tries to recognize their constructed and contingent nature so that we can then focus on the broad policies of focusing on the testator’s intent and family protection.

In Part V, Professor Spivack argues for an addition to the Uniform Probate Code (UPC). Specifically, she proposes that the UPC establish a presumption that the parent or grandparent of a transgender child would want that person to inherit even after the person has changed gender. This presumption could be rebutted if there is clear and convincing evidence that the testator no longer wanted the person with the changed gender to inherit.

Professor Spivack has written a thought-provoking article. While I do not necessarily agree with her view that a rigid, binary view of gender is a relatively new concept, she raises these issues in a thought-provoking way. Her ultimate proposal is a sound one because it helps us to reform our laws in light of modern realities.

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Cite as: Sergio Pareja, A Proposal to Protect Transgender Beneficiaries, JOTWELL (March 16, 2021) (reviewing Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinn. Prob. L.J. 147 (2020), available at HeinOnline),