Transsexual Fights For Estate Share
Jul. 29, 2000
LEAVENWORTH, Kan. (AP) _ After Marshall Gardiner died last year, one of his friends suggested there might be more to his widow than meets the eye.
So Gardiner's only son, Joe, hired a private investigator and found out that his stepmother, J'Noel Gardiner, was once a man.
The two are now embroiled in a legal battle over the late Gardiner's $2.5 million estate in a case that could have wide-ranging ramifications on the recognition of transsexuals and their unions across the nation.
``There's so little case law in marriages involving a transsexual person that inevitably, other states are going to look at what Kansas does,'' said Shannon Minter, a lawyer for the National Center for Lesbian Rights in San Francisco.
Marshall Gardiner did not leave a will. In such a case, under Kansas law, the estate typically would be divided evenly between a spouse and an only child.
But Joe Gardiner went to court a week after his 86-year-old father's death last August, contending he was the sole beneficiary because J'Noel signed a document waiving her rights to an inheritance. At the time, he didn't know that J'Noel once was a man.
In January, Leavenworth County District Judge Gunnar Sundby ruled that Marshall's marriage to J'Noel was void and thus J'Noel had no rights to the estate. The judge cited a Kansas law that only permits opposite-sex couples to marry.
Though the judge ruled that J'Noel was still a male, the state of Wisconsin had issued a new birth certificate saying she was a female.
Sundby did not rule on the inheritance waiver, saying he needed more information on the document and the circumstances of how it was written.
J'Noel has petitioned the state Court of Appeals.
``We feel that she is clearly a woman and that the law in Wisconsin and the court order in Wisconsin should be recognized in Kansas,'' said Sandy Krigel, J'Noel's attorney.
J'Noel, 42, declined to be interviewed for this story.
In the past five years, Minter, of the lesbian rights group, said he has seen an increase in legal cases related to marriages involving transsexuals and expects the trend to continue as their numbers grow.
The majority of the half-dozen or so such cases across the country in the past year have resulted in decisions upholding the validity of those marriages, said Minter, who had a sex change operation to become a man.
Marshall Gardiner served in the state House of Representatives from 1957 to 1960, then worked as a stock broker and amassed his fortune from his own investments. Friends and relatives describe him as an eccentric recluse.
His first wife died in 1984. He was 85 when he met J'Noel, then 40, in May 1998 at Park University in Parkville, Mo., where J'Noel teaches finance. They married four months later.
Joe, 52, said he didn't learn of any romantic involvement between the two until his father called him two days after the wedding.
Shortly after Gardiner died of an apparent heart attack in August 1999, the younger Gardiner learned from a private investigator that J'Noel was once a man named Jay Ball who had sex change operations in 1994 and 1995.
``This happens in movies; this doesn't happen in real life,'' Joe said in a recent interview.
During a deposition, J'Noel said she told Marshall Gardiner before they married about the operations. Joe said he doesn't believe his father would have married her if he knew about the sex change.
``He was very old-fashioned in his moralistic views,'' said Joe, who moved to Leavenworth from Cleveland, Ga., in December to pursue the estate case.
J'Noel has said Marshall Gardiner never wanted his son to have the money.
Whatever the outcome of the litigation, it and similar cases are likely to challenge traditional notions of gender and marriage.
``People are going to love across boundaries, and that needs to be reflected and respected in the law,'' said Riki Wilchins, executive director of the New York-based advocacy group GenderPAC.
On the Net:
National Center for Lesbian Rights: http://www.nclrights.org
National Gay and Lesbian Task Force: http://www.ngltf.org