What Transgender Individuals Need To Know About Estate Planning
Update Your Documents As You Are Able
Your legal identity includes your birth certificate, social security card, driver’s license or state ID card, marriage certificate (if any), and passport (if any). Updating as many of these as possible can (a) reduce the likelihood of outing yourself as trans and (b) provide a clear legal identity.
Right now, every state in the United States allows individuals to change their names. There may be specific requirements, like having residency for a specific period or having a hearing. This means trans individuals may change their given name to match their identity.
Once a name has been changed, trans individuals can update the Social Security office and the agency that issues driver’s licenses/state IDs to have one government document to match their identity, typically by presenting a copy of the certified court order granting the name change and filling out a form. In many states, you can also change your name on your birth certificate.
Most states, but not all, allow individuals to change the gender marker on their birth certificate. Additionally, most states have a process for changing your gender marker on your driver’s license or state ID.
If you are able to change your name and gender marker on your birth certificate, you can apply for employment without outing yourself; it will also simplify your estate planning documentation. If not, other states can be taken.
Since Trump took office, there has been more focus on US Passports. This is one of many documents that can prove your identity. Currently, you can change your name on your passport. When Trump took office, one of his first executive orders removed the ability to change your gender marker - this executive order is currently being challenged as unconstitutional. However, as outlined above, passports are only one of many documents that make up a legal identity.
Have a Written Plan
Having discussions with friends and family about your wishes is an amazing first step, however, it is not legally enforceable except in VERY rare circumstances. The next step is to put it in writing. The documents everyone should get are: (a) health care power of attorney, (b) financial power of attorney, and (c) a will. Other documents that are important for trans individuals are: (a) addendums to health care power of attorneys that outline your gender identity so health care providers are aware of your identity and preferences and (b) nomination of guardianship so if you cannot care for yourself, a trusted individual who honors your identity will care for you.
If you are unable to change your name or gender marker for any reason, having your estate planning documents state your legal name and biological sex and your preferred name and gender is extremely important. If you have some documents updated, but not others, you should also consider listing, at a minimum, your former name so there is no delay, confusion, or identity mismatch.
Have a Strategy for Long-Term Care
Long-term care is not always planned; family and friends are often left to figure this out once you cannot care for yourself. Having a plan is especially important for the trans community to find a care facility that will honor and respect you. If you select a facility in advance of needing care, this can be discussed with your friends and family and identified in your estate plan documents.
Work with an Attorney Familiar with Trans Rights
There are well over a million lawyers in the United States, but there are far fewer who are familiar with trans rights. By working with an attorney who knows trans rights, you can (a) be in a safe space and (b) ensure the additional documentation and protections are in your plan to ensure dignity in aging.
