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Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinnipiac Prob. L. J. 147 (2020).

Editor’s Note: With profound sadness, we share the untimely passing of Dean Browne C. Lewis of the North Carolina Central University School of Law on June 2, 2022. We extend our heartfelt condolences to Dean Lewis’s family, colleagues, and students. Dean Lewis submitted this review shortly before her death, so it was edited and published posthumously.

The probate system is designed to ensure that the decedent’s wealth is transferred to family members. Common law dictates that the probate system gives preference to families. The probate system has not kept up with the ever evolving definition of family. In The Dilemma of the Transgender Heir, Professor Carla Spivack discusses yet another complication that may arise because of the law’s tendency to see the world through a binary lens that requires people to identify as male or female. The problem identified by the author is how the law should treat a bequest when a person transitions to a gender different from the one mentioned in an executed testamentary instrument. For example, the testator may leave a bequest to a son who has transitioned to a daughter at the testator’s death. Does the gift lapse because the person identified in the testamentary instrument as male is now female? The author looks to several legal doctrines to determine whether the law provides a way to save the gift for a son who has become a daughter.

If an ambiguity exists in a will, the court will admit extrinsic evidence to clarify the testator’s intent. Once that intent is determined, the court can distribute the decedent’s property accordingly. In the case of a transgender heir, the ambiguity would be latent because the confusion only occurs when the executor discovers that the heir has transitioned to another gender. Under the common law, a court would allow the executor to present extrinsic evidence showing that the testator would have wanted the person to receive the property regardless of the person’s gender identity. The author, however, rejects the ambiguity-rule approach to resolving the dilemma of the transgender heir because she argues that the will does not truly contain an ambiguity. This is not a typical case of ambiguity in which the testator refers to an heir by the wrong name. Here, the information contained in the will is correct, even though the person named in the will no longer exists in the original form.

The author next turns to the law of mistake to find a solution. Under the Uniform Probate Code, if a provision in the will is the product of a mistake of fact or law, the court may reform the terms of an unambiguous will to carry out the testator’s true intent. The author opines that, in this context, the mistake of fact impacting the will may be the testator’s inaccurate knowledge about the beneficiary’s gender at the time the will was executed. The mistake could also be the testator’s belief that the will did not have to be updated after the named recipient had transitioned to another gender. The author concludes that this doctrine may not be sufficient to save the gift if a contestant claims that the transgender beneficiary is not, in fact, the same person named in the will. If accepted by the court, the claim might render the problem beyond the scope of reformation.

The author then explores the pretermitted heir doctrine as an answer to the transgender heir problem. That doctrine exists to ensure that children who are born or adopted after a parent has executed a will are not disinherited. The doctrine creates a presumption that the testator’s failure to update the will to include after-born and/or after-adopted children was inadvertent. The author likens a transgender heir to an after-born child when a transgender person’s true identity does not come into existence until after the testator has executed the will. Thus, the gender transition can be treated like a birth. However, the author does not think that this doctrine should apply to cases of gender dysphoria because it was designed to deal with a single act—birth. Gender dysphoria can last a long time and it may or may not leader to gender transition. In some cases, the family may think of the transgender person as the same person, so the testator would have no reason to believe that such a person would not be able to inherit.

Another doctrine analyzed by the author is the doctrine of acts or events of independent significance. That doctrine allows courts to take into account the will’s reference to actions and events that have significance for the testator apart from their effect on the testator’s estate plan. At the time of will execution, the testator probably did not know that the beneficiary would change genders, but the author does not find this doctrine helpful because the will refers to a person who no longer exists. Arguably, however, if a will did refer to a beneficiary’s future gender transition, such a reference would constitute an act of independent significance that would allow a court to uphold the devise.

According to the author, current law does not provide a solution to the dilemma of the transgender heir because it is grounded in a binary paradigm when it comes to gender-specific gifts in a will. Consequently, if the gender mentioned in the will no longer exists, arguably, the heir could be treated as having predeceased the testator, and the gift would lapse. The law fails to solve a problem that the law, itself, created. Today, law and society imposes a binary selection of gender at birth, but a transgender person should not be penalized under inheritance law for a gender decision made by parents or medical personnel under compulsion by the legal system.

The author asserts that the solution is for inheritance law to “engage in resistance to the gender binary and bring the transgender heir within its fold.” Hence, the law should focus more on the relationship between the testator and the heir than on the gender of the heir. If the testator’s intent was to provide for the persons with whom the testator had relationships, it should not matter that some of those people may have transitioned from sons to daughters (or vice versa).  The author’s proposed solution is to add a provision to the Uniform Probate Code (UPC) that creates a rebuttal presumption that the testator intends the person to take even after gender reassignment. The presumption could only be rebutted by clear and convincing evidence to the contrary. The proposed provision would align with the UPC’s goal of protecting the testator’s surviving family members in cases of unintentional omission.

The author admits that the case of the transgender heir has not yet been litigated. However, given the increasing number of people who identify as transgender, the test case will probably arise in the near future. After laying out the problem and explaining its importance, the author does an admirable job of explaining the reasons why the current tools in the legal tool box are inadequate. She relies on other scholars and literature to explain the reasons why gender itself should not trigger disinheritance in this context. The foundation of probate law is to ensure that property is distributed in a way that carries out the decedent’s intent, and any solution that focuses solely on gender status may make that task difficult. Therefore, the emphasis should be on the relationships and family connections that a testator built during life. The debate the author undertakes is not a new one, but it shows how, yet again, a marginalized population of heirs might be unfairly treated under the current legal regime. Previously, for example, non-marital children and posthumously born children were disadvantaged by the intestacy system until the law was changed to remove barriers that prevented them from inheriting. In the case of the transgender heir, the law should be proactive and resolve the issue before a rightful beneficiary is denied a bequest because that person has transitioned to another gender.


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Cite as: Browne Lewis, Becoming, JOTWELL (July 15, 2022) (reviewing Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinnipiac Prob. L. J. 147 (2020)),