New Jersey, home to the only cast of Housewives that ever truly mattered, gym/tanning/laundry, and the land of Bon Jovi, now has a new claim to fame: it’s the second state to officially pass some form of the Respect After Death Act, allowing for, among other things, death certificates to reflect proper gender identity.
In response to this happy announcement, I received a couple messages asking if these laws had any bearing on the subject matter of this blog. The answer is yes and no.
Yes, these laws, hard-won and pioneering, have and will do immeasurable good for Californians, and now residents of the Garden State. However, Respect After Death laws do not shield you from the necessities of proper estate planning. The law only provides that, in regards to death certificates, physiological sex markers take a back seat to one’s gender identity, assuming certain standards are met.
What do I mean? Well, for example, California’s law essentially states that funeral homes are dependent upon the informant (aka Next of Kin) to provide a nomination of sex that is consistent with the deceased’s gender identity, unless that information is directly contested by a birth certificate, driver’s license, social security record, court order approving a name or gender change, passport, an advanced health care directive, or proof of clinical treatment for gender transition, in which case, the funeral home must default to that document.
Obviously, the intended effect is to protect the deceased from being misgendered post-mortem. However, the flipside presents a troubling alternative where evil, estranged relatives could potentially manipulate the law for nefarious purposes.
For example, let’s say the deceased is a Caitlyn Jenner type, who is currently partnered and thrice-divorced, with a baker’s dozen adult children. Caitlyn had just started her journey when she suddenly dies intestate, leaving no instructions for her funeral care. Her adult children, as well as her partner, have equal rights to make decisions, and cannot agree on Caitlyn’s gender. Regardless of the fact that Caitlyn’s partner has said Caitlyn was female, Caitlyn’s children take it upon themselves to present the funeral director with her male driver’s license, which Caitlyn had not yet updated. Now, what happens?
Well, I like a happy ending, so in this story, it turns out that, even though Caitlyn never made a formal will, she did name her partner as her funeral agent, so their opinion becomes the only one that legally matters. Caitlyn also created a letter of intent, respectfully laying out her plans for burial and beyond, for the benefit of her butthead kids.
If Caitlyn et al had lived in New Jersey, the projected barrier of entry (ie. type and amount of supporting transition evidence) is much lower, but the outcome, all other things being equal, would still be the same.
The moral of the story is that while these laws are a major win for preserving one’s identity, they’re not designed to address your autonomy.