Pronouns, Gender and Estate Planning
Pronouns came up recently when I was listening to a continuing legal education program on estate planning. I need to do regularly to keep my license to practice law. A presenter advised estate planning lawyers should stop identifying children as “sons” and “daughters” in estate planning documents.
We should make all estate planning gender neutral.
The reason estate planning lawyers should move away from this terminology, we were told, is that these things are always in flux. A daughter may end up becoming a son, then switch to “non-binary” after the estate planning is done. Family members may switch back and forth or in a variety of other directions. Our documents should not put people in outmoded and arbitrary boxes like “man” or “woman.”
Where Society is on Gender and Pronouns
Conventional wisdom throughout much of the United States, enforced now through the medical, public education, mental health, government, and legal worlds, is that we as a society should encourage people to change their genders and encourage everyone to “live their truth.” Changing genders, or reimagining what that means, is proposed as a solution of a wide range of problems, the most common we are told, is that it somehow prevents suicide.
One of my clients told me about the Islamic School his child was in, where two Muslim middle school girls decided they were no longer girls. One Muslim elected official in Oklahoma identifies as “nonbinary,” identifying as she/they. This means she claims to be neither a man, nor a woman.
There has been much written on if this kind of thing is good or bad, and it’s not my purpose to do either. Rather, I want to address the Islamic Estate Planning implications for families who identify as genderqueer, trans, non-binary or who have adopted or created a new gender from a list, or just made up a gender.
Some people reading this, especially Muslims, who have an Islamically-informed worldview, there are some clear rules, and a bunch of what is happening in our society is impermissible in Islam. People in Muslim families are changing their gender identity and expression. We need to deal with that in a variety of ways, as families and as a society.
Islamic Inheritance Consequences with Pronouns
Daughters and sons get different shares of inheritance in Islam, something I have written about extensively. A daughter deciding, she is a son, and her family’s affirmation of this, payments for hormones and surgeries and flying the trans flag outside the house won’t change this, biological sex at birth will be the correct share of inheritance.
Muslims do things that are impermissible in Islam all the time, it does not change the shares of inheritance. Changing your “gender” is not the same thing as leaving Islam. Disinheritance on this basis is out of the question.
Islamic Estate Planning and Islamic Inheritance are not the same thing
As I often tell my clients, “Inheritance”- as in the shares of Islamic inheritance – is different from “Islamic Estate Planning”- which is about organizing your assets during your life for the purpose of fulfilling a variety of goals (charitable planning, asset protection, special needs and more). You should do your Islamic Estate Plan with sensitivity, compassion and understanding. You also don’t want to do anything haram.
Cutting off family ties and other horrors
Much of gender identity issues are tied with mental health, whatever social circles the child has fallen into, internet influencer culture, autism, or other factors. Many of the influential voices in the transgender world actively advocate disassociating themselves from their parents or other family. For parents with minor children, the coercive power of the state can also be scary.
If you are in this situation as a parent, you cannot ignore the social, political and media environment you are in around gender and pronouns. You obviously want to be on the side of truth and against falsehood. But how do you do it if the stakes become so high that your family ties?
Acting with Wisdom
For those of us who have not gone through the experience of having a child announce a change in genders, it’s perhaps too easy for us to wag our fingers and be dogmatic about it. If a Muslim parent reacts to a child’s announcement about a new gender it can be easy to overreact.
I am not going to pretend to know what the right reaction is. The forces causing the child to do what he or she is doing and the menu of horrible things that can happen before or from that point could vary.
Parents should not want to lose their child because of the government, because of the culture the child is in, because of suicide or mental illness, or the rashness of their own actions, well-intended they may be.
In the Islamic estate plan itself, you cannot change the shares of inheritance. However, the advice of the attorney that provided me with continuing education was not completely off base (well he in general, but not always). If identifying a child with their sex at birth or a name they don’t use anymore (called “deadnaming”) lead to harm, not saying those things in the plan won’t be the worst thing in the world. I am not advocating anyone lie. You can be accurate when developing your plan and follow Islamic Inheritance without causing harm.
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