Transgender Beneficiaries – Will Obtaining A Gender Recognition Certificate (GRC) And Changing Your Name Impact Inheritance?

Following the enactment of the Gender Recognition Act in 2005, transgender individuals whose circumstances qualify can choose to obtain a GRC which changes their gender for legal purposes. It is also often the case that transgender individuals will chose to legally change their name to one that they feel best aligns with their gender identity.

One matter that transgender people and their loved ones might find themselves overlooking is that failure to update a will accordingly may impact the beneficiaries entitlement. This could give rise to situations where a person is referred to in a will by the incorrect pronouns, and / or are referred to by their “deadname”, which is no longer their legal name.

It is important to note that in many instances, this will not cause a gift to fail. A key purpose of inheritance laws is to ensure that there is a mechanism, by which the intentions and wishes of the deceased can be fulfilled following their death. If it can be clearly ascertained that the deceased intended for a particular individual to benefit from their estate, this is likely to be enforced. For example, let’s consider a scenario where Jane had been given the name Joe Smith and was assigned male at birth, but has since transitioned, obtained a GRC and changed her name to Jane Smith. If Jane was able to provide her GRC and evidence that she had changed her name, in most instances she should be able to benefit from a will that bequeathed inheritance to “Joe Smith”, where circumstances indicate that she is the correct beneficiary and that it was the intention of the deceased for her to benefit – despite the wrong name being used in the will.

However, there are some circumstances where issues are more likely to arise. In particular, there may be an element of confusion regarding gendered gifts. For example, where a will references son/s daughter/s or grandson/s, granddaughter/s.

If a will was made before the Gender Recognition Act came into effect, on 4 April 2005, any beneficiaries would be considered as having the gender they were assigned at birth, that which appears on their birth certificate. If a will was made after this date, the estate will be distributed on the basis of the acquired gender of beneficiaries.

Anthea makes a will after 4 April 2005. At the time of making her will, she believed she had three sons and one daughter. Her daughter has a well-paying job and is very wealthy, and as such she decides not to leave her any money. Anthea therefore leaves all her money “to my sons” in her will. In the years to come, one of her ‘sons’, transitions to female and obtains a GRC, changing her name to Marina. Anthea does not amend her will. When Anthea dies and the time comes to administer her estate there is no provision made for Marina. This is because, since she obtained the GRC, she can no longer be considered to be a ‘son,’ despite the fact that Marina knew that her mother would still have intended her to be included as a beneficiary.

This does not necessarily mean that it would not be possible for Marina to obtain her inheritance. She could get her siblings to agree to enter into a Deed of Variation to vary the distribution of the estate, but they would all need to agree in order for this course of action to be successful. If Marina’s siblings were not amenable to varying the will and wished to prevent Marina from obtaining the inheritance, it would still be possible for Marina to make a claim on the estate. While it is likely that such a claim would succeed given the circumstances, there are financial implications involved in doing so which would reduce the size of the overall estate, potentially impacting all beneficiaries.

Ensuring that wills are kept up to date, particularly following the transition of a beneficiary, is strongly encouraged. This should help ensure that the donor’s desires are adhered to and that the intended beneficiary does not miss out on their inheritance.

If you or a loved one has transitioned and you’re unsure whether your will reflects your wishes, our experienced Wills & Probate solicitors can help. Get in touch to review your will and ensure your intentions are protected. Call our experts on 0330 822 3451 or request a callback.