James F. McDonough
Of Counsel
732-568-8360 jmcdonough@sh-law.comFirm Insights
A Non-Traditional Trust Issue: Gender Reassignment
Author: James F. McDonough
Date: July 17, 2013
Key Contacts
Back
Occasionally, cases present fact patterns that were unanticipated at the time I was in law school. Today, however, a person’s ability to anticipate these situations is guided by the dramatic changes in medicine and reproductive technology. In Burnett v. Burnett, a guardian filed a divorce action on behalf of the ward for the primary purpose of Medicaid planning. The Michigan court was faced with two non-traditional trust issues raised by the Guardian.
The facts are that a traditional couple was married in the 1980s. One spouse underwent gender reassignment surgery in 2003. The State of Michigan did not recognize same-sex marriages in 2003, so a question arose as to whether the reassignment surgery operated to end the marriage. The Court held that the sexual reassignment did not invalidate the marriage. The reason the action was filed was to obtain a divorce in order to preserve assets. The court held that the Guardian had the authority to file an action for divorce and that Medicaid planning was a valid reason.
One issue that was not part of the case before the Michigan court was whether the reassigned partner could remain a beneficiary of a hypothetical trust. Most trusts that are funded and operating today were probably drafted before advances in reproductive and reassignment. Most trusts provide for children, grandchildren and occasionally for their spouses. Many trusts require that the in-law remain legally married to the descendant to continue as an eligible beneficiary. Suppose the sexually reassigned partner was a son-in-law or daughter-in-law. Would customary language exclude this person as a beneficiary because the marriage is no longer recognized under state law?
What does a trustee do when presented with these facts? Does the trustee seek to limit its liability from claims of other beneficiaries by taking the position that the couple is no longer married under the terms of the trust or state law? What would the outcome be if the couple and the trust resided in different states with the law of each jurisdiction being different?
- Practices: Tax and Trusts & Estates
- Locations: Red Bank, NJ, New York City, Little Falls, NJ
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Related Posts
See all
Failing to Comply With NJ Rent Control Exemption May Prove Costly
What Developers Need to Know About New Jersey’s Rent Control Exemption Law to Ensure Entitlement to Exemption for Newly Constructed Multi-family Housing. A property owner in Jersey City is facing a $400 million federal class action lawsuit alleging that the landlord did not follow the procedural steps required to be eligible for exemption from local […]
Author: Patrick T. Conlon
Crypto Securities Law: When Tokens Become Investment Contracts
The application of traditional federal securities laws to crypto assets continues to evolve. In some cases, the Securities and Exchange Commission (SEC) considers tokens and other digital assets to be securities. This makes them subject to federal securities law, including the Securities Act of 1933 and the Securities Exchange Act of 1934. This classification has […]
Author: Bryce S. Robins
The Due Diligence Process for NY Condominiums and Cooperatives
While the New York City real estate market can be extremely competitive, moving too quickly often backfires. Before purchasing a condominium or cooperative in New York City, it is important to do you homework. Purchasing property in NYC can involve a dizzying number of legal issues. These include condo and co-op rules, rent restrictions, and […]
Author: Jesse M. Dimitro
Smart Contract Legal Issues: Drafting Agreements for Blockchain
Smart contracts feature a unique blend of legal agreement and technical code. This innovation has the potential to reshape how business is conducted. At the same time, smart contract legal issues around enforceability, jurisdiction, identity, and compliance are common. The legal framework for these self-executing agreements is still evolving. What Are Smart Contracts? Smart contracts, […]
Author: Bryce S. Robins
Are Stay Interviews the Key to Retaining Top Talent?
Retaining top talent continues to be one of the greatest challenges facing employers today. Even in an employer’s market, the loss of a key employee can disrupt operations and result in significant costs. While compensation plays a role, long-term retention often depends on workplace culture, communication, and employee engagement. One increasingly popular strategy for improving […]
Author: Angela A. Turiano
Why Secured Transactions Are Important
Secured transactions form the backbone of a wide range of business dealings, including business loans, mortgages, and inventory financing. Because the stakes are often high and relatively minor oversights can have drastic consequences, lenders and borrowers should thoroughly understand how to form an enforceable security agreement that protects their legal rights. What Is a Secured […]
Author: Dan Brecher
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.