Planning for Transgender Couples in Marriage

Transgendered people face thorny legal issues with regard to marriage. Although marriage is not yet a legal option for gay or lesbian people in all jurisdictions, it is already an option — and a reality — for many who are transgender.

Transgender people are often able to enter into a heterosexual marriage after undergoing sex-reassignment. A transgender person may also be married to a person of the same sex, which happens, for example, when one of the spouses in a heterosexual marriage comes out as transsexual and transitions within the marriage. If the couple chooses remain married as many do, the result is a legal marriage in which both spouses are male or female. Alternatively, in jurisdictions that do not allow a transgender person to change his or her legal sex, some transgender people have been able to marry a person of the same sex. To all outward appearances and to the couple themselves, the marriage is a same-sex union. In the eyes of the law, however, it is a different-sex marriage because technically speaking, the law continues to view the transgender spouse as a legal member of his or her birth sex even after sex-reassignment.

In short, marriage is a very real option for a variety of transgender people in a variety of circumstances; in practice, however, the legal validity of marriages involving a transgender spouse is not yet firmly established in the great majority of jurisdictions.

Transgender people who are married must be aware of their potential legal vulnerability and take steps to protect themselves. Married transgender people should certainly act accordingly and should not hesitate to exercise their rights as legal spouses, including, for examples, 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.

Although there are many benefits and protections that arise exclusively through marriage that 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:

> A last will and testament for both spouses;

> 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; and

> 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 acknowledge 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.

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