The sobering reality of life as a trans or non-binary person is that, whilst public attitudes are generally becoming more accepting of trans people, discrimination, hate crime and violence are still prevalent. Galop, the UK’s LGBT+ anti-abuse charity, reported that in the previous 12 months 4 in 5 respondents had experienced a form of transphobic hate crime, and 7 in 10 respondents said that transphobia had had an impact on their mental health.
Trans and non-binary people often have to fight hard for their identities to be acknowledged by others during their lifetime, and this becomes an altogether more challenging prospect after death. In order to ensure that your identity and legacy is respected as far as legally possible after death, there are a number of steps that you can take.
The Birth and Deaths Registration Act 1953, and accompanying regulations, require whoever notifies the registrar of your death to provide specific information about you. In order to be eligible to notify the registrar the person must show that they are a “qualified informant”. Broadly speaking priority is given to relatives, though if none meet the requirements it is possible for someone else, such as a person present at the death or responsible for funeral arrangements, to notify the registrar instead.
The registrar will require details of your name for the death certificate. The 1953 Act itself does not specify that this has to be your legal name, but it would be prudent to ensure that your legal name reflects the name you wish to be known by to avoid difficulties. Qualified informants are under a duty to provide accurate information to the registrar, so if the informant is aware that your preferred name and legal name do not match then this creates uncertainty around the name that should be used on the death certificate. It is highly unlikely that a registrar would refuse to accept a legal name on a certificate, as opposed to a preferred name or “nickname”, so this helps to ensure that your desired name is used regardless of whether the eventual qualified informant is supportive of your transition.
In order for your sex to be recorded on your death certificate as your “preferred” legal sex (male or female – non-binary is not currently an option under UK law), rather than your sex assigned at birth, it is necessary to obtain a Gender Recognition Certificate. Sadly there have been numerous cases of trans people whose death certificates record their new legal name and their original sex because they did not have a Gender Recognition Certificate at the time of their death. It is not clear whether the Gender Recognition Panel will grant certificates posthumously to facilitate death registration in the deceased’s preferred legal gender.
Wills are a mechanism for distributing your property after you die, but they can also be a useful method of expressing your wishes about what you would like to happen following your death. It is common for people to specify funeral wishes in their wills, and you can set out how you would like any funeral service to be conducted. You can also address what should happen to your social media accounts and any other issues which might be important to you about how your legacy should be celebrated and remembered.
It is also possible to make some of the gifts in your will subject to certain conditions, though it is important to ensure that these are carefully worded so that it is clear what you are asking the recipients to do. If you are concerned that your identity and wishes might not be respected in death then you could make a legacy conditional upon these wishes being carried out, failure to do so resulting in your estate going to charity instead. However, in practical terms the best way to ensure that your trans or non-binary identity is recognised is to appoint an executor who you trust and who you can depend on to be supportive.
Find out more about how we can help with your will.
If you have undergone fertility preservation before transitioning, it is important to make sure you have left a clear written record of what you want to happen to any stored gametes or embryos after your death. It is not possible to “gift” gametes or embryos to other people under your will, but you can expressly give consent for particular individuals to use them to have children who are biologically related to you, or you can give consent to your gametes/embryos being donated or used for research.
This consent should be carefully worded to make clear the limits of what you are giving permission for, since if there is doubt over whether you actively consented then it is unlikely that these can be used. Fertility clinics require patients to complete consent forms at the time of storing genetic material, but the forms may not give you enough opportunity to consider or record the full detail of your wishes. Your consent forms also might not be up to date if your wishes have changed.
It is important to make sure that your consents are clear, thorough and up to date. We sometimes help clients to do this as part of the process of making a will, or via a separate consent statement.