An Illinois man has petitioned the state supreme court to weigh in on a clause in his father’s will that disinherits grandchildren who marry non-Jewish spouses.
In a 2-1 decision, a state appeals court on June 30 upheld a lower court ruling that a provision in a will known as the “Jewish clause” was “unenforceable” and “contrary to state policies.”
“I believe (the case) does create a precedent for conditions attached to estate planning,” said Michael J. Durkin, attorney for Michael Feinberg, who wants the “Jewish clause” in his father Max Feinberg’s will held intact.
“It would be a reduction of a person’s right to dispose of his or her property as he sees fit, and an intervention by virtue of public policy by those rights.”
I hope this case is further appealed and the ruling overturned.
I agree with Sarah. The state has no business telling Mr. Feinberg to whom he can will his money.
Ditto, Sarah and Jeffersonian.
His money, his will, his choice.
The state should have some legislatively very well-defined rules refusing to enforce bequests which violate public policy. Surely, we don’t want our states enforcing bequests which would for instance condition a bequest to the beneficiary marrying only someone of his/her own race. This Illinois intermediate appellate court ruled that the requirement to marry within one’s faith traditon “encourages divorce”. ( Several of the beneficiaries were already married to gentiles). I think to argue that conditioning a bequest on marrying within one’s faith traditon can hardly be described as “encouraging divorce”. What’s really at play in this decision is an animus against religion. It’s an all too frequent occurrence in our courts(state and federal).
#5:
If we prohibit wills from putting conditions on inheritances to interracial marriages, are we really causing anybody to be less bigoted?
I personally think that everyone should be able to leave their money as they see fit, as long as it is not illegal (for instance, requesting the money go to a hit man to commit murder) – and this request is not illegal. Public policy issues have no relevance to how someone leaves their money – this is not the state’s business.
samh, if the state refuses to enforce racially discriminatory provisions of wills then the state is causing people to be less bigoted.
I agree with Branford. The shate should have no say in the beneficiaries of a will. If a person wants to place conditions on his beneficiaries, no matter how unsavory the state might find them, if they are not illegal, int’s none of the state’s business.
Ideally the family would raise their children with enough courage in their convictions to turn their back on the money and follow their conscience. But if today the court won’t allow Mr Feinberg to leave his money only to those grandchildren who marry within his faith, what will it do with us when we want leave our estate to a church or a church sponsored charity? Will secular courts decide the validity of this as well? I can see this leading to the limiting of estate gifts to only politically approved groups/purposes.
Branford, that’s an interesting distinction between illegal and against public policy. Of course, in your example, soliciting murder of a specific person is a crime per se, but what if the testator made a bequest on the condition that the beneficiary perform a bank robbery? That request is not a crime per se, but it is against public policy.
So, you would have no objection to a court enforcing a bequest that was conditioned upon the beneficiaries only dispensing income from a trust to needy white recepients?
[blockquote]So, you would have no objection to a court enforcing a bequest that was conditioned upon the beneficiaries only dispensing income from a trust to needy white recepients? [/blockquote]
Nope, just like I have no issue with the United Negro College Fund.
Working off of memory, because I last read this case a month or two ago:
I think one of the problems here is how do you define “Jewish?” The man’s will didn’t have a defnition, so THE COURT would be forced to decide if someone was Jewish in order to meet the provision of the will. (Now ask yourself #1,2,3 and 4 if you want secular courts deciding who is and is not Christian!?)
The will could have been better written. It could have contained a clause something like “Jewish is defined by the Rabbinical Council of America” or with some neutral requirements specifying a certain amount of temple attendance and keeping kosher. But since none of that was spelled-out, the courts were really being forced here to decide if a spouse of the guy’s kids or grandkids was Jewish!
Also as I recall, one of the points made in the dissent was that the spouse in this case wasn’t claiming to be Jewish at all so the court really didn’t need to enter into the thorny question of who is or is not Jewish. So the waters are a little muddy here.
While my sympathies are with the man to decide how his money is given away after his death, I surely don’t want secular courts deciding who is or is not a “real” Jew or Christian or whatever….
#11,
Again, I’m with Jeffersonian. I have no problem with him leaving his bequests to only non-whites, if that is the testator’s wish. None of our business and certainly not the state’s.
#12
Can we all stop with the UNCF thing?!
Most of the benificiaries are Black but the fund does provide money to students regardless of ethnicity.
Q: Does UNCF only support African American education?
A:UNCF was founded to address inequities in the educational opportunities afforded to African Americans. UNCF believes in higher education opportunities for all Americans. UNCF-member schools do not discriminate and UNCF-administered scholarships are open to all.
http://www.uncf.org/aboutus/faqs.htm
I remember on one of the first days in law school in Contracts Class that any negative clause like that in a will that ultimately negates a constitutional freedom will not be inforced by the courts to prevent what was dubbed “dead hand control.”
Same principle as someone donating money to a hospital with the condition that black people never be admitted or various other things like that. Same principle here as far as I can tell.
Archer,
In your example, the bequest is to an institution or an entity serving the public. We’re talking about leaving the bequest to an individual. I think they are two different issues.
[blockquote]Can we all stop with the UNCF thing?! [/blockquote]
I didn’t realize it was such a hot topic! I also didn’t realize the UNCF gave grants to non-blacks, not that it would be objectionable if they didn’t. It’s a private organization, it should be allowed to help whomever it wishes to.
#18
Recently, there was another thread on T19 where many a reference was made to UNCF as a “discriminatory” organization…
[blockquote]Recently, there was another thread on T19 where many a reference was made to UNCF as a “discriminatory†organization… [/blockquote]
It was obviously founded as one, and I’d like to see their grant statistics…I bet they still heavily favor African-Americans, NTTAWWT.
#11 – phil –
No, I wouldn’t – or to needy black or Asian or Italian or etc. recepients. It’s none of the state’s business. In fact, many scholarships make these stipulations so why can’t an individual in a will? Now, your other thought – leaving money to someone on the stipulation they commit a crime is interesting. You’re not leaving the money so that the crime can be committed (hiring a hit-man), you are leaving the money on the condition that a crime be committed. I’m not a lawyer, so I don’t know if that in and of itself is a crime or not (maybe the person leaving the money could be likened to an accessory to a crime?). The crime would not have been committed except for the will’s language? I don’t know the answer to that.
#19 –
I hope it’s discriminatory – and only gives money to those willing to work and study hard to finish college. Discrimination is not a bad thing – we all do it every day. If you mean “racial discrimination,” that’s different. I see no reason why the UNCF wouldn’t favor African-Americans over others – that was their reason for existence – to counteract the inability of qualified African-Americans because of job discrimination, etc., to have the financial means to attend college. Why is that a bad thing? If they now have opened up their process and funding, that’s great, but not necessary in my eyes. They have a definite purpose and there’s nothing wrong with it. They are not the only source for college funding in the country, so if you’re not African-American, you have plenty of other places to go.
#21
But here’s the problem: do you want the Courts deciding who “real” Jews, Christians, etc. are? (see my post #13).
The UNCF provides funds for historically black colleges. Those colleges are required by law not to discriminate on the basis of race. So, a contribution to the UNCF is not “a bequest to only non-whites”.
St. Cuervo, that’s an interesting point, but I don’t recall anything in the opinion addressing that issue. The holding is simply that restricting the beneficiaries to marrying within the faith violated Illinois’ public policy against encouraging divorce. This holding is, of course, silly.
In 1948, the US Supreme Court prohibited state courts from enforcing private restrictive covenants which discriminated on the basis of race. So, I think that if state courts were to enforce will provisions that discrimiminated on the basis of race it would be a violation of the fourteenth amendment.
It’s all about people refusing to allow their heirs to make their own decisions, isn’t it? Sin, sin, sin. The new trend toward ‘trusts’ (for even those of very modest means) is another way for people to try to control their family members from the grave. I have personally witnessed at least half a dozen instances in which a very rigid family member (who inherited everything they owned) had disapproved of some decision made by the next generation: examples include choice of wife, choice of husband, decision to limit their family to two children, choice of career. None of these cases involved drug use, addiction problems, criminal stuff. No, they simply chose to NOT live under their parent’s thumb. In every case, the person making the trust could easily have chosen to leave their estate (and we’re not talking millions here) to some charity, or another person, etc., etc. Instead, they wanted to continue to control their ‘disobedient’ child by setting rigid conditions (‘do this or no money’). In three of the cases, the grandchildren lost out! Sick, sick, sick.
#24
Nonsense.
Cabbage, it’s nothing new. Jane Austen made a career out of writing stories revolving around such issues. It was quite familiar to the Romans. It comes into the realm of that which is immoral is not neccesarily illegal. It is their money, and they can do as they wish. Our agreement or approval is neither needed nor requested.
And I say this as the son of one who was disinherited over something like this. I know tolerably well of what I speak.
Andrew 717, Wow! My heart goes out to you. You’re right, it’s nothing new (note I begin my post with ‘sin, sin, sin).
evan miller’s #25, tain’t nonsense, pal, it happens all the time. Not every parent (or grandparent, etc.) is wonderful. Some are simply control freaks who can’t face the fact that they will someday be out of the picture and their nearest kin may then be free to make their own decisions. (Even when the kin are very nice, decent, hard-working, contributing members of society). That’s what I was trying to point out. And lo and behold, Andrew 717 has personally been thru it! Don’t be naive, it’s not nonsense, it happens. (Hope it doesn’t happen to you or yours!)
Not so bad. If my dad had his share of the family business I’d have never moved away and would have never met my fiancee. I’d rather have her than the money. At least most days. 😉
Everything works out.
Mr. Feinberg has been dead for many years, his wife for a few. This clause of his will amounts to a bounty offered to married descendants (and their spouses) to either convert or divorce and a bounty to unmarried descendants to marry someone Jewish. This is Mr. Feinberg’s dead hand from the grave trying to control the future behavior of his descendants — but but the much narrower appeals court decision is based on an Illinois Supreme Court ruling from 1898 that held that any provision of a will that DIScourages marriage or ENcourages divorce is invalid and unenforceable.
Note that, in contrast to this narrow decision, two of the three consolidated cases that were before the court involved grandchildren who had filed suit against the executors (children of the deceased) for diverting, to the executors, from the estate, some big bucks assets held by the deceased, and the executors attempted to have the plaintiff’s suit thrown out on the grounds that the will deemed them to be dead via this “Jewish clause”. One effect of this decision is that the lawsuit against the executors can go forward. The other appears to be that the grandchildren can inherit without being married in the Jewish faith.
Taking a step back, the circuit court of Cook county Illinois originally struck down this clause of the will. The executors (children of the deceased) appealed, and as the presiding justice of the appeals court observed, the executors who are appealing are doing so in order to deprive their own children (grandchildren of the deceased) of their inheritance (which would lead to the money going to the executors rather than the executors’ children).
Folks may want to read the court’s opinion before commenting further. It explains the narrow holding of the court as well as the bigger picture of the estate. Apologies if I have not summarized the opinion accurately.
Thanks, tgd, how fascinating and am I ever glad I’m not a family member!
tdg, the majority opinion relies upon three cases in which the wills provided that if the beneficiaries divorced their spouses then they would receive the corpus of the trust. Those wills specifically provided a benefit if the person divorced. Feinberg did not request any beneficiary divorce. I don’t remember if the opinion states whether any of the grandchildren were married when the Feinbergs’ executed the will. However, even if there were grandchildren married to gentiles at the time of the execution of the will it’s silly to say that the bequest encourages divorce. It would be like saying that a bequest that was conditioned upon neither the grandchildren nor their spouses smoking was a bequest that encouraged divorce.
I know personally of a case of a grandmother who listed her biological grandchildren by name and excluded the adopted one. It happens. Other than criminal requirements, people can put whatever they want in their wills except for spouses, and even those laws can be avoided with valid pre-nuptial agreements.
In this case, the grandfather wanted to encourage his grandchildren to continue the Jewish tradition and chose not to give money to those grandchildren who left the faith by intermarriage. It’s his choice, and the grandchildren have their life choices. If they value their life choices more than their grandfather’s money, then they can live with integrity probably more happily than they would with the money.
Agree wholeheartedly with Katherine. My dad owes me nothing. It is his money. He may do what he likes with it. If he makes some sort of requirement that I dye my hair blond and convert to Buddhism in order to receive it after his death, than I, as a person of integrity must of course not receive his money and remain a brunette Christian. After death, people would think far less of him, and far more of me for his requirements and my response to them . . . but it’s his money, and by rights he may choose to not deliver it to me.
So, Katherine and Sarah, you would have no legal objection to a state court enforcing a will provision which devised real property subject to a restrictive covenant that the property not be alienated to a black person? Katherine’s example of the legal protection for a spouse is a good example why the state has an interest in restricting devises beyond just criminal activity.
The public policy restricting bequests that encourage divorce is a good policy. However, it is inapplicable in the Feinberg case. The Feinberg bequest didn’t encourage divorce anymore than a bequest which was conditioned on the beneficiaries’ spouses not being smokers. The cases which this court relied upon all had specific provisions that said the beneficiary would inherit the corpus of a trust if he divorced his spouse.
What is most upsetting about this case is the shoddy legal analysis. Intermediate appellate courts should stick to error correction and leave the lawmaking to their state Supreme Court.
How about leaving lawmaking to the legislatures, #34? To answer your question, I would consider a will leaving property only to “white” people to be morally repulsive and entirely disgusting, but something the testator is entitled to do. Presumably once the property is in the possession of the inheritor it now belongs to that person and he can do what he wants with it thereafter.
Phil, it was his money. Not yours, not the court’s and not the government’s. Part of freedom is that people are free to do things we don’t like.
Katherine, to the extent that we still have the common law, we’ll continue to have judge-made law. People are free to do some things we don’t like, but I thought we had reached a national consensus that that did not include racial discrimination. The law recognizes many exceptions to the freedom to dispose of one’s property as one wishes and it’s disappointing to hear so many commentators say that racial discrimination is not one of them.
It’s like the old line, “I disagree with every word you say, but will defend with my life your right to say it.” The test of freedom is when people exercise that freedom in a way we disagree with profoundly. As long as no one is harmed (and the lack of a gift of a bucket of money is not harm!) the state should not intervene.
The law generally takes a different view of your rights once you die: They die too.
So, rather than scrimp and save all my life, live on the residuals of my capital in retirement, and pass on my life savings to my heirs with moral and religious stipulations, I should just spend my money while I am alive and die a pauper…or better yet, in debt and a ward of the state. If I can’t dispose of my property in the manner in which I see fit…it isn’t my property. Once more, the state intervenes where it has no business intruding.