Recognizing and hoping that this series may be moot in 6 months, when SCOTUS hears cases from Ohio, Michigan, Kentucky, and Tennessee that involve state bans on same-sex marriages, in the interim, planning for those who may be “neither” is important. The following are remarks from a presentation I gave in the fall of 2014 at the Illinois Institute for Continuing Legal Education: What if I’m Neither: Estate Planning for Transgender and Queer Persons.
In striking down Section 3 of the so-called Defense of Marriage Act (“DOMA”), SCOTUS’s U.S. v. Windsor ruling delivered a great victory to the LGBTQ community and especially to the L, G, and B persons and couples. However, the rights afforded this and other marriage equality victories were still questionable for certain couples, specifically those whose parties included transgender or queer persons. So estate planning for the entire LGBTQ community still required a thorough understanding of the laws, rules, regulations, and opinions involving both marriage and gender equality.
A big issue for lawyers is understanding “who” our clients are. If this is important to us, it’s crucial for our clients because if the lawyer doesn’t get it; then you clients should find a lawyer who does. Identifying who is the client, can be reduced to a simplistic answer is we use Illinois law. Section 10(c) of The Illinois Religious Freedom and Marriage Fairness Act (“Illinois Marriage Fairness Act” or “Marriage Fairness Act”) provides:
Parties to a marriage shall be included in any definition or use of terms such as “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” “wife,” “husband,” “bride,” “groom,” “wedlock,” and other terms that refer to or denote the spouse relationship, as those terms are used throughout the law, regardless of whether the parties to a marriage are of the same sexes or different sexes.
As you can see, this section of the Marriage Fairness Act completely removes gender orientation as a factor in determining marital relationships and the accompanying rights, burdens, benefits, and obligations for Illinois citizens.
If gender is removed from the marital relationship formula, then what’s left? Who are the parties? Who are the clients? Simple: Persons. The individual who is sitting at the conference room table seeking our help is a person. The individual may be a transgender person or queer, but he, she, Dana, or they is (and, in this case, the grammar is correct) a person first, deserving of the respect, dignity, and excellent service provided any client.
In other words, if a lawyer doesn’t recognize a potential client as a person, then that person shouldn’t recognize that lawyer as competent to serve the potential client’s needs.
Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4
