The trans community is receiving a lot of press these days. After all the sensationalism surrounding the pregnant trans man, it was refreshing to open up The New York Times yesterday and read about the financial and legal complexities of being married and transgender.
The profile highlighted Denise and Fran Brunner. They married back in 1980 when Denise was Donald and they stayed together after Donald had a sex-change operation in 2005 that made her Denise. They obtained an amended marriage certificate that listed their current and legal names but this poses many questions:
Massachusetts is the only state to have legalized same-sex marriage, and the Brunners are two women married to each other in New Jersey. As this state (along with Connecticut, Vermont and New Hampshire) confronts challenges over whether its civil unions fulfill the mandate of providing same-sex couples equal rights and benefits, the Brunners offer themselves as Exhibit A on how the nation’s dizzying patchwork of marriage laws, which include the domestic partnerships of California and other states, may be out of step with people’s lives.Last year, I wrote a post about how gay and lesbian families are denied the same social security benefits that heterosexual Americans receive upon the death of a spouse. One transgender reader left this comment:
The Brunners say they have no interest in obtaining a civil union — they consider it a downgrading of their relationship — but they do worry about their status. What if the Internal Revenue Service questions their joint tax returns?
What if they retire to North Carolina, a state that they say is less legally friendly to transsexuals and same-sex couples? What if they were taking their daughter Jessica to college in Pennsylvania, and were in a car wreck that left Denise unconscious — would the authorities accept Fran as her wife?
“Are they going to recognize that she can make the decision for me?” Denise asked. “We don’t know that, and that’s not the time I want to contest that in court.”
“It can get even more confusing if you’re trans. I was married as a guy, and now that I’m a gal, what’s my status? She and I are still together. So I have an ‘F’ on my driver’s license and my passport, but Social Security has me as “M”. (I’m trying to maintain a kind of dual citizenship here.) We’re paying taxes as married, filing jointly.”The New York Times continues:
“But I’m retired, and that means Medicare has me down as male; which isn’t a good match to the body I present to the doctor. And I can’t help but worry. One of these days, some humorless government records-droid is likely to start an inquisition, and who knows where that’ll end up? In court, at the worst case - and transfolk there are legally a Rorschach Blot for some wretched judge that feels like seeing things.”
Julie A. Greenberg, a professor at the Thomas Jefferson School of Law in San Diego, said marriages like that of the Brunners are rarely challenged by government agencies because more conservative states do not recognize sex changes, and more liberal ones (like New Jersey) are loath to seem hostile to transsexuals.I’m not trans nor am I qualified to be dishing out advice on this topic, but I’ve actually learned a lot about the financial complexities that comes with being trans by the number of Ten Money Questions interviews I’ve done with trans people / trans supporters over the last couple of years. In case you missed them:
The Brunners were already married when Donald became Denise. Transsexuals who marry after surgery pose a different set of questions, and there have been a number of custody, probate and other cases with decisions all over the legal map.
- Helen Boyd: Author of My Husband Betty
- Jamison Green: Author and Leader within Transgender movement
- Jay Sennett: Cartoonist, Founder & Publisher of Homofactus Press
- Alexandra Billings: Transgendered Actress and Singer
- Christine Daniels: Transexual sportswriter for LA Times
- Jennifer Boylan: Best-Selling Author and Professor at Colby College
It is critical that transgender people who are married become aware of their potential legal vulnerability and take steps to protect themselves as much as possible. As an initial matter, transgender people who are married should certainly act accordingly and should not hesitate to exercise their rights as legal spouses, whether that be the right to file married tax returns, the right to apply for spousal benefits or the right to have or adopt children as a married couple. At the same time, however, it is also important to create a safety net in the event that the validity of the marriage is challenged.Anyone care to share their personal experience on this topic? Feel free to comment over at Queercents.
Although there are many benefits and protections that arise exclusively through marriage and cannot be duplicated through any other means, there are also some basic protections that can be safeguarded and secured through privately executed documents and agreements. At a minimum, a transgender person who is married should have:
1. A last will and testament for both spouses
2. Financial and medical powers of attorney in which each spouse designates either the other spouse or another trusted person to be his or her legal agent in the event of incapacitation.
3. A written personal relationship agreement including a detailed account of each spouse’s rights and responsibilities with regard to finances, property, support, children and any other issues that are important to the couple.
The agreement should also include an acknowledgment that the non-transgender partner is aware that his or her spouse is transgender to avoid any later claims of fraud or deception. Ideally, the couple should draft those documents with assistance from an attorney and supplement them with any other legal planning documents that are appropriate for their specific circumstances.
With those basic documents in place, transgender people who are married can at least ensure that the spouses can inherit each other’s estates and retain control over their own financial and medical decisions, even if the validity of the marriage is challenged. In many cases, the safety net created by extra legal planning will never have to be used. In others, the presence of that extra protection will shelter the transgender person and his or her spouse from devastating emotional trauma and financial loss.