Money and the transgender community: three steps to safeguarding finances
‘œThe rights of every person are diminished when the rights of one are threatened.’ ‘“ John F. Kennedy
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.
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?
‘œAre they going to recognize that she can make the decision for me?’ Denise asked. ‘œWe don’t know that, and that’s not the time I want to contest that in court.’
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:
‘œIt 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 ‘œM’. (I’m trying to maintain a kind of dual citizenship here.) We’re paying taxes as married, filing jointly.’
‘œBut 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.’
The New York Times continues:
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.
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.
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:
- 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: Transgender Actress and Singer
- Christine Daniels: Transexual sportswriter for LA Times
- Jennifer Boylan: Best-Selling Author and Professor at Colby College
So back to the money and marriage topic: How can the transgender community protect their marital relationships? Shannon Minter covers this in the article: Transgender People and Marriage: The Importance of Legal Planning:
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.
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.
Anyone care to share their personal experience on this topic?
This is a painful article, in the way that picking a scab opens a wound.
Some random thoughts:
We work hard to have surgery and forget stuff like this.
Not sure I could every accept someone as a spouse who knows my past. You deal with the freaks when transitioning and perceptions get colored.
Out-and-proud posties make me cringe, less news is better. Let us blend in.
Living under the radar is not just about passing, if you’re outside of a large city, it can be about survival, too.
It’s good to see articles like this, but still…
Interesting that we have such different experiences, Mary. While not everyone knows I’m trans, I couldn’t imagine having a partner who didn’t know. It’s just a significant part of my history and mindset.
It’s good to be reminded of how different we all are.
Thanks for the tips. I hope you keep up the trans content.
I’m in a similar situation to the Brunners, though technically I’m Intersexed rather than Transsexual, but TS is close enough. In 1985, the diagnosis was mildly intersexed male. In 2005, as the result of my condition becoming manifest, I was diagnosed as a severely intersexed female. By that time, I couldn’t pass as male anyway, and shortly thereafter started a treatment regime based loosely on a standard TS transition. It was an immense relief, as I’d always had a female gender identity.
I also have dual UK/Australian citizenship. My UK Birth Certificate saying “boy” can’t be changed, as I’m not legally TS. My genital reconstruction wasn’t an MtoF SRS, but an FtoEvenMoreF procedure. Legally as well as medically, I’m female in Australia, though I’m the biological father of my son. Yes, it took technical help.
My Australian marriage is secure, because in Australia, marriage is a matter of Federal jurisdiction. The validity of a marriage is determined on the facts at the time the marriage was contracted, so a transition by one or both partners subsequently has no effect. Neither is transition on its own grounds for divorce. This despite the contract of same-sex marriages being illegal.
That means that should we divorce, I could only marry a man in Australia, but only marry another woman in the UK. God alone knows what the situation would be if I moved to the US. Currently I think I’d be regarded as a married male, a married female, an unmarried female, or neither male nor female, depending on the state (and sometimes county).
This mess makes a laughingstock of the whole business. It should be cleaned up.
Thanks for this great write-up on really important stuff that, as Mary points out, we forget.
Ms. H. and I are in the process of preparing those documents Shannon discusses.
In the process of discussing these documents with our attorneys (one of whom is MtF), I discovered that my “legal” change of gender (as designated on my birth certificate) is, in fact, merely an administrative one.
“Only a judge can declare a legal change of gender,” is how my lawyers put it.
So, I am now administratively male but legally female, I guess. Very, very strange.
Thanks again.
Great post, Nina. I guess I’d never really thought about this before.
“Donald had a sex-change operation in 2005 that made her Denise.”
Many trans people object to this formulation, which assumes that we are our birth gender until we’ve had surgery. Many trans people feel that, for example, Donald always was Denise, or that Donald became Denise when she came out, transitioned, and asserted her identity, surgery or not.