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Marriage Involving Transsexual Challenged By Decedent’s Son

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JUNE 4, 2001 VOLUME 8, NUMBER 49

Marshall and J’Noel Gardiner were married in Kansas in September, 1998 after a short courtship. At the time Mr. Gardiner was 85, his new wife was 40. Mr. Gardiner died less than a year later, survived by Mrs. Gardiner and one son, Joseph Gardiner. Mr. Gardiner had not gotten around to writing a will, which under Kansas law meant that Mrs. Gardiner would normally inherit a portion of his estate. There is an interesting wrinkle to that basic story, however—J’Noel Gardiner was born a man.

Mrs. Gardiner, nee Jay N. Ball, had long thought of herself as a woman. Beginning in 1991 she started a course of treatment including electrolysis, hormone therapy, counseling and, ultimately, surgery. In 1994, after the completion of her sexual reassignment surgery, she petitioned the Wisconsin courts (she had been born in that state) for an order amending her birth certificate. It was four years after that process was completed that she first met Marshall Gardiner.

Kansas law, like the law of many states (including Arizona), prohibits marriages between two people of the same sex. The courts were faced with a difficult problem: is J’Noel Gardiner legally a man or woman?

After legal arguments the Kansas trial judge decided that Mrs. Gardiner is biologically a man, and the marriage therefore invalid. Mrs. Gardiner appealed that decision, and the Kansas Court of Appeals reversed the trial judge’s decision in a thoughtful and reflective opinion.

Biological, psychological and legal questions are intertwined in the Gardiner saga. Since Wisconsin had officially declared Mrs. Gardiner to be female, did the Kansas courts even have the right to question her sexual identity? If so, did the fact of her chromosomal makeup prohibit her from marrying a man—and if it did, what effect would that have on other individuals who might have chromosomal ambiguities like XXY, XYY and XO? If the defining element of sexual assignment is neither chromosomes nor birth certificates, how should the law determine sexual identity?

The Kansas Court of Appeals rejected each of the easy answers. Using chromosomal evidence alone, reasoned the Court, could preclude others with ambiguous chromosomes from every legally marrying—a particularly harsh result since some individuals with ambiguous chromosomes are not even aware of the fact. Relying solely on birth certificates, passports and other official documents would prevent a full analysis of the facts in individual cases.

The trial judge had granted summary judgment, determining that Mrs. Gardiner’s gender at birth was the only issue to be considered. The Court of Appeals reversed that decision and directed a thorough review of the validity of Mr. and Mrs. Gardiner’s marriage. That review, according to the Court of Appeals, should consider chromosomal makeup as well as a variety of other determinants of sexual identity. The opinion specifically recognizes gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity. In addition, advancements in the science of sexual identity should be considered in cases arising in the future. Estate of Gardiner, May 11, 2001.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.