Advising Transgender Clients on Estate Planning and Vital Records

“Advising Transgender Clients on Estate Planning and Vital Records,” that’s the subject of today’s ACTEC Trust and Estate Talk.

Transcript/Show Notes

This is Natalie Perry, ACTEC Fellow from Chicago, Illinois. Transgender, or trans, people may decide to change their legal name and/or gender marker as part of their journey to live as their authentic self.

Many wealth and estate planning professionals are not familiar with the steps necessary to accomplish these updates or with issues specific to financial and estate planning for the LGBTQ community. ACTEC Fellows Cynthia Lamar-Hart and Paula Kohut are with us today to offer advice on what T and E professionals need to know when working with transgender clients. Paula, do you want to start us off?

Paula Kohut: Sure, Natalie. Thank you for that introduction. Maybe we could start with some basic terminology. “Transgender” is an adjective, and it refers to someone whose gender identity does not match their birth at sex. So, I was born Paul, and I transitioned, and now identify as female and as a transgender woman. Another thing to keep in mind is that gender identity is distinct from sexual orientation. So, I can be transgender, and what my sexual orientation is, whether that’s towards men, women, or if I’m bisexual, that’s separate and apart from my gender identity.

So, I could be a transgender woman who also happens to be a lesbian. I could be bisexual. And the other issue that often comes up is medical interventions and what’s appropriate to inquire about or not. And generally, that’s considered to be a very private subject, and just like you would not ask an estate planning client about what medical procedures they underwent, you would only ask that if it’s relevant. And if someone identifies as transgender, it’s typically not relevant to inquire as to whether they had any medical interventions. That’s a personal decision that they make with their own physician.

As far as the estate planning documents themselves, one of the most important things for transgender clients and clients with transgender beneficiaries are going to be, for example, healthcare powers of attorney, to make sure that those are in place. Most states would provide that my healthcare surrogate is going to be my next of kin unless I have the healthcare power of attorney and many LGBTQ clients, particularly transgender clients, may have family members who don’t respect their gender identity or relationships. So, you’d want to make sure to appoint healthcare agents that will respect their gender identity and you can also draft the documents in a way that requests that the healthcare providers honor their gender identity, and some materials are in some of the resources that we posted on the website that goes into this in greater detail.

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The other thing would be, if there are hostile family members- family members that would not respect someone’s gender identity- I always put in a paragraph specifically excluding that family member from being involved as an agent or even a guardian.

And I usually have to, when I’m counseling with clients at the very end, I ask them if there are any family members that are hostile, that would have trouble with the fact, that they’re transgender or they’re gay or lesbian so that I can identify those persons in their healthcare documents as well as their general power of attorney to make sure that those persons are not appointed as a guardian. The other thing to keep in mind is just the amount of political division that there is concerning transgender people and transgender rights.

There’s a lot of state legislation that continues to be introduced each year. And whether you’re in a friendly state, an LGBTQ friendly state or a hostile state, you need to keep in mind that your client – you want to make sure their documents are good wherever they are, in whatever jurisdiction they’re in. So, it’s a good idea to make sure that you stay current with what’s going on in your jurisdiction and other jurisdictions regarding transgender rights and the rights of LGBTQ people.

And then finally, even though it’s often covered under a healthcare power of attorney, I like to do a separate document that appoints an agent for the final disposition of remains, and this can be very important for a transgender person, who would obviously not want to have their final arrangements made contrary to their gender identity. And, in North Carolina, we have a statute that specifically authorizes us to appoint an agent for the disposition of final remains, and I’ve provided a form that I use here in North Carolina that could be adopted in your state for that purpose. The other issue that we want to address in this podcast was identity documents and vital records and, Cynthia, you were going to go over those details.

Cynthia Lamar-Hart:  Thank you, Paula. Yes, there are several reasons why it’s imperative that trans individuals have identity documents that match their name and their gender identity. And the first one is one that we can all understand, and that is of course that it can be annoying or embarrassing for any of us to be called by the wrong name or be lumped into a group that we do not identify with or that is not accurate for us based on assumptions or prejudices and, of course, the same is true for trans individuals.

It’s a matter of courage and self-expression for them to obtain identity documents that match their identified name and gender and it’s a matter of common courtesy for others who interact with them to respect and accurately refer to their name and their pronouns and their gender identity. And the second reason that it’s important is one that we may not automatically assume, but that is that having accurate identity documents can be a matter of safety and security for a transgender individual.

The statistics for violent crimes and hate crimes against the LGBTQ community and trans individuals in particular are alarming, with trans women of color being among the most vulnerable populations in the world. And also here in the United States, and for that reason, it can be particularly important that one’s vital records and identity documents accurately reflect one’s gender identity and one’s presentation to the world.

Also, we know that having correct social security records and updated identity documents can help avoid confusion, harassment, or even outright discrimination in the workplace. So, I want to make clear that essentially all of an individual’s identity documents can be updated, but I also want to stress that every state has its own sets of laws and procedures, and therefore, the guidance that Paula and I can offer is very general, but I will walk quickly through the documents that can be changed and typically the order in which they are changed.

In most states, and for most individuals, the first step is to obtain a name change order. That will be governed by state law, and that typically is done in the probate court or a court of like jurisdiction in the state. Again, each state will have its own set of rules and, in my experience, even from county to county within a state there may be different rules, different procedures, different fees. And so while it’s not necessary for an individual to have an attorney to get a name change order, it can be helpful if there’s an attorney who is familiar with the processes in each county just to help the individual navigate what documents are necessary, what fees, and in what order to file things.

With this name change order in hand, the individual can change his, her, or their name across the board. That would be at work, at school, in their school records, with Social Security, voter registration, driver’s license, passport, credit card, bank account, in a will, and other estate planning documents.

The next step, if desired, would be to obtain a so-called “federal letter,” or other documentation acceptable to Social Security and the State Department, to change one’s gender marker. On the State Department’s website, you will find the documentation that the State Department will accept, and they are no longer requiring a physician letter to change your gender marker on your passport.

For Social Security, they also are offering a number of ways that a person can establish a change of the gender marker and one of those includes what we would refer to as the federal letter from the physician. And they give the exact statement there on the website that they would need in the physician letter. Changing the gender marker on a birth certificate is going to be governed by state law and it can vary dramatically from state to state.

Some states just allow the individual to make the change, some require a physician letter, and those vary broadly, but once you are able to obtain either a corrected or modified birth certificate, then, often, the final step is to obtain the corrected gender marker on the driver’s license. So, those are the steps and the documents that can be changed and, again, it will vary broadly from state to state, but Paula and I do suggest that you check the Trans Legal Services Network, which is hosted online by the National Center for Transgender Equality, for a state by state guide to changing your identity documents and that link will be provided on the foundation’s website. Thank you.

Natalie Perry: Thank you, Cynthia and Paula, for educating us today on advising transgender clients in estate planning.

A Resource to Share with Your Clients:

Transgender? How to Change Your Legal Name and Gender Marker on Vital Records. ACTEC Fellows Cynthia Lamar-Hart and Paula A. Kohut share their legal and practical experience supporting transgender people who are changing their name and gender. Learn more about updating vital records and estate planning considerations in this video.

Resources for Estate Planning Professionals

• Estate Planning for Gay, Lesbian, Bisexual and Transgender Clients: Statutory Surrogates, Regulatory Changes, Health Care Powers of Attorney & Related Considerations– Article by Paula A. Kohut Published by the Estate Planning & Fiduciary Law Section of the North Carolina Bar Association (Section Vol. 31, No. 3, April 2012)
• Creating End-of-Life Documents for Trans Individuals: An Advocate’s Guide– Produced by Whitman-Walker Health
• S. Department of State’s Procedure for Changing Gender Marker on Passports
• Social Security Administration’s Procedure for Changing Gender Marker
• Social Security Administration’s Emergency Message 2-2-2022 Re: Accepting Documents with a Non-binary Sex Designation or “X” for Enumeration Requests.
• National Center for Transgender Equality’s State by State Summary of Name Change, Driver’s License & Birth Certificate Policies
• How Friendly is the Driver’s License Gender Marker Change Policy in Your State

Practice Note for Name Change Petitions:  When stating the reason for a name change in a name change petition do not unnecessarily “out” your client as transgender.  In many, if not most cases, as simple statement that: “The petitioner wishes to adopt the name they are known by in the community” is all that is required as a reason for a name change.  Remember the file is typically a public record.  See link for state specific requirements, above.

Maria Mangano, In Defense of the Singular They, North Carolina Lawyer, Feb. 2020, p.8. (Explains how the singular “they” is “well established in both spoken language, and, yes, written language too, for centuries.”

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