Designing an estate plan can give your loved ones a clear outline of your wishes for the distribution of assets, guardianship of dependents, medical decisions, financial transactions and more if you become incapacitated or pass away. Working with an attorney can help minimize confusion, conflict, and legal complications for your loved ones.
Traditionally, estate planning documents have relied on standardized legal language, which while still functional, may not reflect the diversity and complexity of modern families and identities as they currently exist or may evolve in the future.
As society becomes more aware of varying identities, relationships, and family structures, it is important for drafting attorneys to be aware of the inclusivity or exclusivity of form language in estate planning documents.
Inclusive language helps ensure that all significant relationships are acknowledged and honored. As we celebrate Pride Month at HBC, we’ve outlined three ways to champion inclusive language in your estate planning documents:
1. Shift away from binary gender phrases. Drafting attorneys may consider shifting away from binary gender in phrases like “his or her,” and substituting use of “their” as a singular pronoun. This change could be important for non-binary individuals who do not identify strictly as male or female. Furthermore, misgendering an individual named in an estate planning document could be an error that causes confusion in the client’s estate plan. Use of a neutral term such as “their” also allows the client’s plan to refer to future generations of individuals without making assumptions about gender.
2. Ask your clients about their chosen names and/or pronouns. Attorneys may also want to add language to their form estate planning questionnaires that asks clients to provide chosen names and/or pronouns for individuals they intend to include in their estate plans. If the individual refers to themselves by a chosen name, but has not legally changed their name, then attorneys may consider including their legal name only as an alias.
3. Use inclusive language as it relates to family members. Another area of attention for drafting attorneys is in the use of familial relationships as identifiers. When referring to someone who is related to the testator, an attorney may consider including a gender-neutral term to describe the familial relationship (e.g., “my cousin, Rachel Smith”). The drafter can use “child” or “descendant’ rather than “daughter” or “son.” “Parent” can be used in place of “mother” and “father.” Instead of using “sister” or “brother,” use “sibling.” While some attorneys have adopted the use of the word “nibling” as a gender-neutral term for “niece” or “nephew,” others prefer to use “sibling’s child”.
Discussions about identity and relationships can be deeply personal and are best handled with care, confidentiality, and without judgment. Clear, inclusive language reduces ambiguity, makes the documents more resilient to legal challenges and strengthens the enforceability of a person’s wishes.