There can be some confusion around Wills involving transgender heirs. This confusion may mean that your wishes are not respected when you die or you may not receive what you believe you are entitled to as a beneficiary.
This confusion stems from how beneficiaries are identified in the Will. A simple example is in your Will, you leave 60% of your estate to your sons and the remaining 40% to your daughters. If you have two sons and two daughters, each son receives 30% and each daughter receives 20% of your estate. This is clear and straightforward.
But what if after you have made your Will one of your sons changes their gender? Do they now receive part of the 60% or part of the 40% of your estate?
The answer depends on when the Will was made. If your Will was made before 4th April 2005, then anything that was left behind in your Will to a son or daughter is not affected if they have changed gender in the interim. In our example, your son who changed gender would still inherit 30% of your estate. This is true for anyone who is identified in your Will by gender.
However, if you made your Will after 5th April 2005, then your son could be treated as a daughter and change the distribution of your estate completely. Your one remaining son would receive 60% and your three daughters would share the remaining 40%.
As another example, you have two daughters. If your Will (made after 5th April 2005) specifies that “my eldest daughter receives 60% of my estate and my youngest daughter receives 40%” and one of your daughters changes gender in the interim, then they would no longer be entitled to inherit.
The simplest solution is to name the individuals in your Will rather than using identifiers such as “son” and “daughter”. Another solution is to state in the Will that “the gifts are to pass to those who fulfill the relevant description on the date the Will was made”.
If your Will uses identifiers, like “son”, and one of your beneficiaries changes or has changed their gender, then we strongly recommend that you update your Will.
But what do you do if you are the beneficiary affected? The Will under which you should benefit uses such identifiers and you have changed your gender? How do you avoid losing out? We will look at the legal issues and potential solutions below.
Transgenderism in Law
There is no legal definition of the term ‘transgender’. In practice, the term is used to describe individuals whose sense of personal identity and gender does not correspond with their birth sex.
So, it may be used to describe someone who:
- Has undergone gender reassignment (transsexuals)
- Intends to undertake gender reassignment
- Does not identify with a particular gender
- Engages in certain activities, such as cross-dressing
Such a broad definition makes it difficult to precisely define the term “transgender” in law.
The Gender Recognition Act 2004
The Gender Recognition Act 2004 allows individuals who have changed gender to apply for a Gender Recognition Certificate. If they meet the criteria and are not already in a marriage or civil partnership, then the applicant is entitled to full recognition of their acquired gender.
An individual who has a GRC is regarded as male or female for all legal purposes going forwards but this certificate is not retrospective. The exceptions are:
- Right of conscience for Church England clergy who may choose not to marry two people after one has changed gender
- Descent of peerages
- Sports organisations may exclude transsexual people if it is necessary for ‘fair competition or the safety of the competitors.’
The Gender Recognition Act came into effect on 4th April 2005. Prior to this period, a change in gender was not recognised by the law. In other words, you would still be treated, under law, as your birth sex. So, before this date, you would still be legally recognised as son or daughter in your parent’s Will regardless of a gender change.
However, after 4th April 2005, you are legally regarded as the gender stated on your GRC. Hence, the confusion around Wills containing references to gender based identifiers made after this date.
Transgenderism and Inheritance
The Gender Recognition Act does provide some protection to beneficiaries who have changed gender since the Will was made. This includes:
- Protection for trustees who distribute an estate without regard to whether a Gender Recognition Certificate. In other words, if you are referred to as son or daughter in your parent’s Will and have since changed your gender, then a trustee is legally protected if they distribute the estate based on your gender at the time the Will was made.
- Enabling the Court to alter the distribution of an estate, if this has been altered due to an individual changing gender since the Will was made. So, in our examples, the Court can ensure the individual receives 30% as the son when the Will was made, or does inherit in the case of where one of the daughters has changed gender.
There can also be the situation where you have been dis-inherited because you have changed gender. In this case, either:
- The actual beneficiaries of the Will may choose to remedy matters themselves by making a deed of variation.
- As a child, you may have recourse under the Inheritance (Provision for Family and Dependents) Act 1975. In the case where reasonable financial provision has not been made for you, this Act enables the Court to vary the distribution of the deceased’s estate.
This can be a difficult area. If you need advice and support, then we urge you to contact
Conditions in a Will
When someone is making a Will, they may impose conditions on the gifts you receive as a beneficiary, i.e. you must comply with this condition before you can inherit.
However, you may be able to receive the gift without compliance, if the condition is against public policy, e.g. asking you to commit a crime, separate from your spouse etc. This would also include a condition that you reverse your gender change.
There are also other circumstances where a condition may be void such as repugnant conditions (i.e. it is impossible for the condition to be performed) or uncertain.
How can we help?
If you would like peace of mind that comes with knowing that your wishes will be respected in your Will or if you require support in claiming an inheritance after a change in gender, then please contact Kathryn Caple, on 01283 526230 or at kathryn.caple@elselaw.co.uk. Kathryn is an experienced solicitor who is very sensitive to the needs of her clients offering advice and guidance tailored to their personal situation.