Words Matter

Issue January/February 2021 February 2021 By Jennifer Z. Flanagan
Probate Law Section Review
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Jennifer Z. Flanagan

As trust and estate attorneys, we are acutely aware of the importance of language and word usage in our drafting. A sloppy sentence in a will or a trust may cause ambiguity, leading to expensive litigation after the client’s death. We need to determine the correct words and use them in the proper context and with appropriate punctuation to produce a clear and concise document that will not be open to multiple interpretations years after we have stopped practicing. While our use of words in drafted documents is critical to our practice, our use of language when speaking with clients is equally important. As our vocabulary evolves and changes, it is important to be aware that words and phrases that we have historically used may have dubious underlying or historical meanings.

Footnote 11 in a recent case decided by the Massachusetts Appeals Court is a perfect example of a commonly used word that many are not aware has racist beginnings. Comstock v. Zoning Board of Appeals of Gloucester, a zoning dispute that would usually only mean something to law students and lawyers looking for precedent, actually made an appearance in The Boston Globe and The New York Times. The court referred to a section of the General Laws that “provides a certain level of protection to all structures that predate applicable zoning restrictions.” The footnote to that sentence states as follows:

Providing such protection commonly is known — in the case law and otherwise — as “grandfathering.” We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase “grandfather clause” originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867.

We often use “grandfather clause” or “grandfathered” to describe situations where a new law or rule exempts structures that were in existence prior to the passage of the new law or rule, such as “grandfathered generation-skipping transfer (GST) trusts.” Over the past few years, and especially as we as a society try to become more informed and sensitive, more attention has been drawn to the history of the term, and many are attempting to find an appropriate substitute so as to move away from the use of such racially insensitive terminology. Many people and companies are now using “legacy” or “legacy clauses” in place of “grandfather” and “grandfather clauses.” Perhaps it is time to take the Appeals Court’s footnote to heart and refer to grandfathered GST trusts and grandfathered laws as “legacy GST trusts” and “legacy laws,” or find another appropriate word.

Another set of terms that trust and estate lawyers must grapple with is “husband and wife.” We have many clients in same-sex marriages or relationships where the terms husband and wife are not appropriate. Using the neutral term “spouse” in all documents addresses the issue in our drafting. In our meetings with clients, colleagues and business partners, it is also important to remember to use the word “spouse” rather than husband or wife, unless you know that the individual is married to or partnered with an opposite-sex person. Making assumptions about a prospective client’s personal situation (especially if representing only one spouse/partner) or the family members of a client could end the relationship before it even starts.

We are also more often working with families who have transgender or non-binary family members. Sometimes the clients themselves are just learning about a transgender or non-binary child or other relative. Being able to use the appropriate terminology (such as preferred pronouns or preferred names) with them reflects a level of care and respect beyond simply being a client.

The GLAAD website has a helpful glossary of terms related to transgender people that we urge those reading this article to consider thoughtfully. Some of the basic terms that all should be aware of are as follows.

Sex: The classification of a person as male or female. The term intersex applies to a person born with reproductive or sexual anatomy and/or a chromosome pattern that cannot be classified as typically male or female.

Gender Dysphoria: The distress resulting from the difference between a person’s gender identity and the person’s assigned sex.

Gender Identity: A person’s internal, deeply held sense of their gender. For transgender people, their internal gender identity does not match their assigned sex at birth.

Sexual Orientation: Describes a person’s romantic, physical or emotional attraction to other people. Gender identity is different from sexual orientation.

Gender Expression: Refers to how a person outwardly expresses themselves. This can be a person’s name, pronouns, way of dressing, haircut, voice, behavior and body characteristics.

Non-Binary: To be non-binary means to identify yourself outside of the binary definitions, such as male/female or masculine/feminine. Being non-binary can mean different things to different individuals. Often, individuals express it through choice of pronouns or the way they dress, or sometimes by nothing outwardly noticeable. They simply do not feel like they fit into a specific gender role. Some non-binary people experience gender dysphoria and others do not.

Transgender: This is an umbrella term for people whose gender identity and/or gender expression differ from the sex they were assigned at birth.

Transsexual, Cross-Dresser: These are classes of transgender people. “Transsexual” is an older term used to described people who have changed, or seek to change, their bodies through surgery or hormone treatment, and is preferred by some people. Being a cross-dresser is a form of gender expression. Many cross-dressers are heterosexual men.

Trans: Used as a shorthand to refer to a transgender or a transsexual person. GLAAD recommends using the full terms unless the person makes it clear that they prefer “trans.”

Transition: “Altering one’s birth sex is not a one-step procedure; it is a complex process that occurs over a long period of time. Transition can include some or all of the following personal, medical and legal steps: telling one’s family, friends, and co-workers; using a different name and new pronouns; dressing differently; changing one’s name and/or sex on legal documents; hormone therapy; and possibly (though not always) one or more types of surgery. The exact steps involved in transition vary from person to person.”1

Some adjustments that we can make as practitioners are simple:

  • If you know you are working with a transgender or non-binary person, use “they/their/them” or their preferred pronoun in the notary block.
  • Review your estate planning questionnaires and intake forms and use Spouse 1 and Spouse 2 instead of husband and wife.
  • Unless you are working with a couple who prefer to be addressed as “Mr. and Mrs. Smith,” use “John Smith and Jane Smith” in the address and “Dear John and Jane” in the salutation.

Other considerations, such as referring to an individual by a name that may change if the individual transitions and/or applies for a legal name change, raise more complex drafting issues.

Our drafting will evolve as we work with more clients and families with transgender and non-binary family members. I had a client with a transgender family member for the first time last year. I now have three different clients who have transgender or non-binary family members.

As we learn more about the history of language, as our individual identities are more fully and freely developed, and as new words and phrases enter our lexicon, we as attorneys need to continue educating ourselves so that we can work with our clients and their families in a sensitive, compassionate and respectful manner. 

Jennifer Z. Flanagan is a partner with Vacovec, Mayotte & Singer LLP specializing in trusts and estates law for domestic and international clients. She is a member of the Massachusetts Bar Association’s Probate Law Section Council.

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