Gender Identity and Estate Planning

Those of you as old as I am have lived through one revolution:  the communications revolution.  We went from wall phones to smart phones in a generation.  From no computers to computers everywhere and in everything we use.  We can all recognize the incredible implications of this event.

Now we are in the midst of a second revolution: the gender revolution.

This is not just, or even primarily, about gay marriage.  The gay marriage phenomenon was telling.  It demonstrated how quickly public opinion changed to completely recast a social institution that has been around since the start of civilization.  President Obama’s famous week of reflection during which his views on same sex marriage were evolving, while amusing, was also an appropriate metaphor of what happened in America generally.  It is hard to recall any social structure that was so well established and fell so quickly.

Putting political viewpoints aside, I think we all have to accept the proposition that, on the issue of gay marriage, the bell has been rung.  Gay marriage is here to stay (notwithstanding Michigan’s current holdout position).

Gay marriage will have implications to estate planners for sure.  But the point of this blog is that the bell that rang for gay marriage, was the bell at the end of round one.  There are at least two more rounds to go in what is a broader evolution of society.

Round two:  I am a person

In a recent conversation with two colleagues, one more liberal than the other, one colleague suggested that the percentage of people who were gay was about 8%. The other believed it was more like 1%.  Interesting discussion, but for me the answer is that we won’t really have any idea until the social stigma associated with gender preference identity is completely washed away.  What percentage of people are heterosexual?  What percentage are homosexual?  What percentage are somewhere in the middle?  What percentage are both?  What percentage naturally evolves during the course of life from one identity to the other?  The point is that as our culture continues to change, more and more people will not want or need to be locked into any gender identity – and in terms of what we do as planners, gender identity serves no particular purpose.  Does it really matter any more whether I am called “man” or “woman”? I am a person.

For estate planners, one would expect future documents to be gender neutral.   Even now, references to “my sons” or “my daughters” can, and probably should, simply be “my children.”  “Husband” and “wife” can better be stated as “spouse.”  But we don’t have gender neutral terms for all relationships.  The possessive “his” and “her” seem to have no comfortable neutral alternative.  “Nieces” and “nephews” are a challenge – although “the children of my siblings” might suffice.  We need to work on these.

Round Three:  Child Bearing is Optional

Along with the change in gender identity and gender roles, comes a change in the decisions people are making with respect to reproduction.

My partner, Amy Tripp, recently presented a program on the topic of planning for dual income couples with no kids (aka DINKs).  She noted the rapid growth in professional couples (and singles for that matter) that simply elect not to have children.  In her materials she references research that confirms the increase in this population, and that points out that the choice not to have children is directly related to the education level of the partner who has the capacity to bear children (fka, the woman).  The more educated, the more empowered, the more capable they are to just say “no thanks.”  The negative social implications of putting one’s professional life ahead of becoming a parent are evaporating.

This trend will continue, and as Amy discussed in her program [and as she wrote about in a recent article in Trusts and Estates Magazine (click here)], this population of clients has unique estate planning concerns that need to be understood and addressed.  Among other things, the absence of children reduces the importance of planning for the preservation of assets for future generations, but increases the importance of planning for incapacity.

Conclusion

The changes in the way society defines gender, and in the diminishing importance of traditional gender roles, implicate estate planners in several ways.  The rapid change in gay marriage attitudes and laws is only the beginning of a broader evolution that will continue. We should expect these changes to sweep in as quickly as did the acceptance of gay marriage, and it’s time to start thinking and talking about how they will impact what we do.

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