Transgender Parents | The Rights of Children in a Trust

It takes little imagination to understand that the life of a transgender person is full of family and emotional challenges. These challenges reverberate throughout relationships. And, at times intrude into the administration and litigation of trusts and estates.

Transgender people who formed families after transitioning have faced challenges to their legal status as parents. There are some extreme cases, now over thirty years old, where courts have terminated parents’ parental rights, completing severing the parent-child relationship, because they were transgender.

In 1986, the Nevada Supreme Court held that a transsexual “in a very real sense, has terminated her own parental rights as a father. It was strictly (the male’s) choice to discard his fatherhood and assume the role of a female who could never be either mother or sister to his daughter.” Dissenting Justices observed that the termination of parental rights because of a medical procedure “does not justify a total and irrevocable severance of (the child’s biological father’s) formal legal tie to a child he obviously cares about and desires to help nurture.”

In the past transgender individuals have been deprived of the most basic of rights,

such as inheriting the estate of their spouse, death benefits, and child custody. It is widely believed that the Supreme Court ruling in Obergefell v Hodges making same-sex marriage a federal right is a basis for expanding the protection of the transgender community.

“The life of the law has not been logic, it has been experience.”

The rights of children of transgender parents now find a new legal basis for clarification. If their parent believed that his or her formal legal ties to their children were severed by the performance of a medical procedure, the parent’s estate plan may have been formed by mistake of fact or mistake of law. Estate plans of now-deceased transgender parents formed upon a mistaken belief will, in the right circumstances, be subject to challenge.

Our California-based law firm litigates estate, trust and elder financial abuse cases. Our geographic focus is in Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento. If you would like to speak with us about your case, call us at (916) 313-3030.