Can a Male Who Has Had a Sex Change be the Surviving Wife For Inheritance Purposes?

Robert Ray

CaptureIn an interesting inheritance decision out of the Corpus Christi Court of Appeals, the court was faced with a same-sex marriage question. As background, Texas has a constitutional and a statutory prohibition against same-sex marriages. While similar provisions in other states have been held to be void, the Texas provisions are still viable, at least for the time being.

In the inheritance case, a fireman married a person who was born a male. This person still had male sex organs but had been dressing and acting like a female all her life. At some time after the marriage, she had a sex change operation. The fireman died in the line of duty. The fireman’s mother filed a probate action saying that the fireman was not married at the time of his death because Texas forbids same-sex marriages. A prior wife filed similar papers on behalf of the children of the fireman. The current wife answered that she was female and that the marriage was valid. She produced evidence of gender dysphoria or gender identity disorder. Her evidence showed that she had had this issue from the time she was a young child and the state recognized her condition.  The state of California, where she was born, had changed her birth certificate prior to the marriage showing that she was born a female. The trial court ruled that the marriage was void because Texas doesn’t recognize same-sex marriages. As a side note, although it is not mentioned in the decision, the fireman did not have a will. If he had a will, he could have left his property to the wife whether the marriage was void or not. Because he didn’t have a will, the issue would come down to who are the beneficiaries if a person dies intestate, e.g. without a will. His wife would be a beneficiary if he had a valid marriage.

After reviewing all the evidence and the motions the Court of Appeals reversed. The court indicated that Texas authorizes the clerk in each county to issue a marriage license to someone who proves they are male or female by a “sex change…” While the wife did not file the proper motions to have the court render a decision for her, there was enough evidence to overturn the trial court’s ruling and send the case back to the trial court to determine whether the wife was male or female. That ruling sounds strange but when you read it knowing that the wife did not file the proper motions, it is more understandable. The court had to send the case back to the trial court. There was no other way to dispose of the case. As of September 2014, the case is pending review by the Texas Supreme Court. 13-11-00490-CV,443 SW 3d 233. Compare this case to 04-99-00010-CV, a 1999 case that ruled differently.


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The Author

Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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