Archive for Sunday, July 30, 2000

Transsexual wife wants $2.5 million estate

July 30, 2000

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— After Marshall Gardiner died last year, one of his friends hinted to his only son that Marshall's widow had a secret. Gardiner's son, Joe, hired a private investigator.

Joe discovered that his stepmother, J'Noel Gardiner, had been a man before marrying Marshall.

"This happens in movies; this doesn't happen in real life," Joe said during an interview at the office of one of his three attorneys.

Joe is embroiled in a legal battle with J'Noel Gardiner over Marshall's estate, estimated to be worth $2.5 million. The case could have wide-ranging legal ramifications on the recognition of transsexuals and their unions.

"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.

Minter, who had a sex change operation to become a man, represented a transsexual male in a 1998 divorce case in Orange County, Calif. In that case, the district judge ruled the man met the legal definition of male and should have paternity rights.

In the Gardiner case, Marshall did not leave a will. In January, Leavenworth County District Judge Gunnar Sundby ruled that the marriage of Marshall and J'Noel was void and J'Noel had no rights to the estate.

Sundby cited a Kansas law that requires people to be of opposite sexes in order to marry, and he ruled that J'Noel still was a male.

Joe, who moved to Leavenworth from Cleveland, Ga., in December to pursue the estate case, twice offered J'Noel what he called a "substantial settlement," but was turned down.

Kansas vs. Wisconsin

J'Noel is appealing Sundby's ruling to the state Court of Appeals, which isn't expected to hear arguments in the case until this fall.

To a large extent, the case rests on the fact that Wisconsin, where J'Noel was born, issued a new birth certificate saying she is female.

"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, who declined to be interviewed, said during a deposition that her male genitalia were a birth defect.

Under Kansas law, the estate typically would be divided evenly between a spouse and an only child if there is no will.

Gregory Pease, a professor at the Washburn School of Law who specializes in estate law, said he knows of no previous estate cases in Kansas involving transsexuals.

Although Kansas amends birth certificates to reflect sex changes, state law does not address transsexuals.

Attorneys for both sides agree the outcome of the case could set a legal precedent for gender issues, and national transgender groups are following the case.

'Eccentric'

Marshall Gardiner was a reporter at The Leavenworth Times before serving as a member of the state House of Representatives from 1957 to 1960. He later worked as a stock broker and amassed his fortune from his own investments.

Marshall, whom friends and relatives describe as an eccentric recluse, got vanity license plates that said "1000000" after making his first $1 million.

Joe, who now drives the charcoal 1986 Nissan 300ZX with those plates, said his father was a "very complicated man."

Marshall's first wife, Molly, died in 1984, which Joe said made his father even more reclusive.

Marshall met J'Noel in May 1998 at Park University in Parkville, Mo. J'Noel teaches finance at the college, which received large donations from Marshall.

They married in Oskaloosa on Sept. 25, 1998, in a private ceremony. At the time, Marshall was 85 and J'Noel was 40.

Romance hidden til wedding

Joe, who designs Web pages and computer graphics, previously had received postcards from trips the couple had taken, but he said Marshall always referred to her as his driver.

The son said he didn't learn of any romantic involvement until his father called him two days after the wedding.

He recalled that Marshall told him: "I wanted you to meet your new mother."

J'Noel said at a deposition she told Marshall before they married that she had had a sex change, but Joe finds that hard to believe.

"He was very old-fashioned in his moralistic views," Joe said.

Marshall died of an apparent heart attack on Aug. 12, 1999, while flying to Baltimore to visit his brother.

A few days after the funeral, Joe found a document signed by J'Noel in which she waived her rights to an inheritance.

Joe said at that point, J'Noel responded, "Checkmate. You win."

The son and some of Marshall's friends say Marshall told them he had a document protecting him.

Vince Toro, who runs a car repair shop in a building that Marshall owned, said Marshall told him, "Whatever she makes is going to be hers, and whatever I got is going to be mine."

Sundby, the Leavenworth County judge, did not issue a final ruling on the waiver.

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