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Can the law regard a transgender union as a same-sex marriage?

The laws related to California same-sex families are slowly but surely being adjusted to provide equality for all married couples. However, these laws mostly address issues of concern to lesbian and gay couples, while a large group of citizens in the LGBT communities is transgender. This group still faces many insecurities that have yet to be addressed. It is still unclear whether a marriage where one party's birth gender was different from their current gender is regarded as a same-sex marriage or a heterosexual marriage.

Although couples where one party has undergone sex-reassignment can get married as a man and a woman, some courts may regard the union as a same-sex marriage, disregarding the new gender of one spouse. In some marriages, one spouse may undergo the transition during the marriage, changing the couple into a same-sex couple that will remain legally married as a heterosexual couple. It is, therefore, not surprising that a lack of legal clarity exists, and transgender couples may want to be proactive in protecting their legal rights.

Transgender couples can take advantage of all the legal rights allowed by traditional marriage laws related to tax returns, adoption, spousal support and more. However, they remain vulnerable and may want to be prepared for the event when their marriage's validity is challenged. Matters that should be addressed include a final will for each, along with powers of attorney for both medical and financial matters. A detailed list of each partner's responsibilities and rights related to support, finances, property and other matters should be prepared.

To avert future claims of deception or fraud, the spouse who is not a transgender person may want to include a document stating his or her prior knowledge of the sex-reassignment. The services of an experienced California same-sex marriage attorney may be invaluable in preparing the required legal documents. In the unfortunate event of a divorce or death of one spouse, this additional legal protection may ensure the protection of the rights of transgender couples.

Source: hrc.org, "Transgender People and Marriage: The Importance of Legal Planning", Oct. 19, 2014

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