OPINION: Beyond the transition – key considerations for estate planning

by Matt Parr | Shakesepare Martineau
Thursday, 4 July 2019 08:52 GMT

A participant lies on a giant Transgender Pride Flag during the Equality March, organized by the LGBT community in Kiev, Ukraine June 23, 2019. REUTERS/Gleb Garanich

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Wills written before a British trans person has a Gender Recognition Certificate won't recognise their change of gender

Matt Parr is an associate at law firm Shakespeare Martineau

For many in the transgender community, the transition journey is anything but smooth, bringing with it a host of physical and emotional challenges. Yet many people may not be aware that it can also pose a particular set of issues when it comes to drafting wills. 

In order to avoid any unwanted disputes occurring at an emotional and turbulent time, it is important for trans people and their family members to carefully consider the implications of a change in gender for estate planning. While conversations about wills and inheritance rarely come easily, communicating with family and friends about any knock-on impacts for the will drafting process is also key to ensure that each person referenced in it is identified according to their wishes.

Regardless of an individual’s financial position, estate planning is essential, ensuring that assets and loved ones are safeguarded for the future. However, within the trans community, fear of stigmatisation and other factors, such as family conflicts, may cause people to put the process on hold. If wills are not updated to clearly reflect new gender identities, disputes may arise further down the line, adding additional stress at an already difficult time.

Under the Gender Recognition Act 2004, which came into force on April 4 2005, an individual’s new affirmed gender cannot be legally recognised until they have secured a Gender Recognition Certificate (GRC). It’s important to bear in mind that these are not retrospective in effect and wills drafted prior to this date will be construed taking into account the beneficiary’s assigned gender i.e. the sex they were assigned at birth. As such, the fact that the beneficiary’s gender has since changed will be disregarded. 

Take, for example, a will drafted in March 2005, which refers to all of the successor’s sons being entitled to 60% of their estate. If one of the sons subsequently transitions to become a woman, they would still be recognised as a son for the purposes of distributing the estate. It is therefore important for trans people to have frank discussions with family members from whom they would expect to inherit at some point in the future, to ensure changes are made to existing wills.

Some trans people may believe that it would be simpler to put off estate planning until after the transition process has been completed, however, this is not necessarily the case. The current process of obtaining a GRC is a notoriously long drawn-out and emotionally-turbulent process, which requires people to live as their chosen gender for two years, before being subjected to a series of probing tests, and being put in front of a Gender Recognition Panel. 

As with all estate planning, the process should start as early as possible, and it’s important not to put off until tomorrow what can be done today. Even before a GRC has been obtained, careful drafting of wills and other important documents can ensure they remain valid despite a beneficiary living as the opposite gender and being identified by a different name.

For family members of those who are thinking of transitioning, or have already done so, it’s worth considering re-drafting their own wills to incorporate gender-neutral terms such as “child”, as opposed to those such as “son” and “daughter” or refer to their beneficiaries by name. This can help to ensure that all children are able to benefit, regardless of their gender.

Existing marriages and civil partnerships can introduce another potential source of confusion during the estate planning process. When seeking advice, it’s important to choose a professional who can ensure the marriage or civil partnership continues to be legally valid once a GRC has been obtained.

For many trans people, a fear of judgement can create a psychological barrier which may discourage them from seeking expert estate planning advice.

However, rather than burying their head in the sand, it’s important for them to find an adviser who they feel comfortable with, and begin discussing the will-writing process at the earliest possible stage.

By getting discussions with those affected underway, and by securing the right expert advice, those undergoing a transition can embark on the next chapter of their lives, safe in the knowledge that their loved ones are protected for the future.