Marry a Conservative Catholic, Or You're Written Out of My Will!

[Bricker]

The thing I best recall from my Property class was the odd pale-green tile ceiling. It evidently fascinated me so much that most of the actual law conveyed is now a blur.

So I don't have much in the way of scholarly response to this Illinois Supreme Court (http://www.state.il.us/court/Opinions/SupremeCourt/2009/September/106982.pdf) decision, and wouldn't have noticed it if it hadn't been the subject of a blog post by Eugene Volokh... but it's interesting.

It involves a trust made by Max and Erla Feinberg. Putting aside some interim provisions not particularly interesting the key aspect of their bequest was: everything goes to the grandchildren when they die, except that any grandchild who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year of marriage would be considered dead as far as the trust goes, and get nothing.

This provision was challenged, and the trial court upheld the challenge. The appeals court agreed with the trial court, saying that the provision was void on public policy grounds. "Under Illinois law and under the Restatement (Third) of Trusts, the provision in the case before us is invalid because it seriously interferes with and limits the right of individuals to marry a person of their own choosing."

The Illinois Supremes disagreed. There is no question that a grandparent in Max’s situation is entirely free during his lifetime to attempt to influence his grandchildren to marry within his family’s religious tradition, even by offering financial incentives to do so. The question is, given our public policy of testamentary freedom, did Max’s beneficiary restriction clause as given effect by Erla’s appointment violate any other public policy of the state of Illinois, thus rendering it void?
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The trial court and the appellate court erred by finding a violation of public policy in this case. While the beneficiary restriction clause, when given effect via Erla’s distribution provision, has resulted in family strife, it is not “so capable of producing harm that its enforcement would be contrary to the public interest.”

So... debate? I assume the Illinois Supremes are right on the law (as, indeed, they have to be, since they are the final arbiters of what Illinois law means). But should legislators now step in to change this law? Should we restrict testmentary freedom when it seeks to invade choices like marriage?

[Eonwe]

I think I agree with the supreme court in this case. The only 'right' that is interfered with is the right to inherit money from someone who doesn't want you to get it.

[Anaamika]

As odious as it is to me to try to influence your grandchildren's marriages, I have to agree with the Supremes. If it's your money, you should be able to give it away as you see fit - or not.

[FriarTed]

Another vote for Their money, their rules.

[Camus]

Putting aside some interim provisions not particularly interesting the key aspect of their bequest was: everything goes to the grandchildren when they die, except that any grandchild who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year of marriage would be considered dead as far as the trust goes, and get nothing.



The biggest problem doesn't seem to be public policy but of interpretation. I assume that the bequest is a bit more specific, but if not, how does one define "of the Jewish faith"? Does that mean a practicing Jew or does being born into Judaism count? Does it have to be an Orthodox Jew or can a Reform Jew qualify? I didn't read the link to the actual opinion, but it wouldn't surprise me if the Illinois Supreme Court, whether stated or not, gave extra berth to this clause given that Jewishness is both a religious and ethnic concept. As a minority with a long history of persecution, Jews may have more of a stake in ensuring the survival and continuation of their culture and religion, thus making this particular provision not contrary to public policy.

This is as opposed to the thread title concerning conservative Catholics, since they are not a distinct group and it would be difficult to measure what exactly constitutes a conservative Catholic. Or Catholic for that matter, since that could include a Marionite Christian or a few other small denominations that still use the name "Catholic" in some variation.

[Euphonious Polemic]

They could give it to the Home for Ancient Cats, and nobody could say anything. Is it actually required to have public policy to ensure that anyone can marry a person of their choosing? Or is it none of the governments business?

[Starving Artist]

No one's right to marry outside a certain faith was being abridged; they were still perfectly free to marry anyone they like. The only thing that was being abridged was their desire to get ahold of grandma and grandpa's money under conditions that grandma and grandpa didn't want them to get it.

Frankly I'm surprised that the case had to get all the way to the Illinois Supreme Court before the proper ruling was made.

[Bricker]

The biggest problem doesn't seem to be public policy but of interpretation. I assume that the bequest is a bit more specific, but if not, how does one define "of the Jewish faith"? Does that mean a practicing Jew or does being born into Judaism count? Does it have to be an Orthodox Jew or can a Reform Jew qualify? I didn't read the link to the actual opinion, but it wouldn't surprise me if the Illinois Supreme Court, whether stated or not, gave extra berth to this clause given that Jewishness is both a religious and ethnic concept. As a minority with a long history of persecution, Jews may have more of a stake in ensuring the survival and continuation of their culture and religion, thus making this particular provision not contrary to public policy.

This is as opposed to the thread title concerning conservative Catholics, since they are not a distinct group and it would be difficult to measure what exactly constitutes a conservative Catholic. Or Catholic for that matter, since that could include a Marionite Christian or a few other small denominations that still use the name "Catholic" in some variation.

Fair questions. I kinda glossed over this in my summary, but to answer you in a bit more detail, the trust gave Erla a limited testamentary power of appointment over the distribution of the assets, and she exercised that after Max died to specifically name the people getting distributions. At the time Max prepared his estate plan, his grandchildren were too young to marry. But Erla, surviving Max, executed the plan as he wanted it done, and the court addressed the issue of whether his desire in the abstract was valid. So far as I can tell, none of the would-be beneficiaries contested the basic issue of whether they had a spouse that was incorrectly classified as non-Jewish for the purposes of the trust.

[Kimmy_Gibbler]

I think the first three responses above fail to appreciate the law's disfavor for trying to control the lives of your relations from beyond the grave. "Their money, their rules" certainly is a pithy maxim, but then again, so is "We all gotta go sometime." And they should note: It's never been held that you have an unfettered right to dispose of your property however you wish at death. From the formalities commanded by the Statute of Wills to elective shares to the cy pres doctrine, all testamentary gifts are closely regulated by the state.

As it happens, I encountered this principle in both Property and Estates & Trusts. An Ohio court in Shapira v. Union National Bank confronted this same problem, and, as I recall, held similarly to the Illinois Supreme Court. In fact, the testamentary condition in Shapria was even more onerous than the one here: there the beneficiary had to many a Jewish woman within seven years of the testator's death or the gift would lapse.

The court found that it was merely a partial restriction on marriage and thus enforceable. It noted in dicta that it might hold differently if the condition were severely restrictive (i.e., if only a very few people belonged to the class of eligible spouses) or if it required divorcing a current spouse. Shapira was decided in the 70s, but we live in enlightened times--Query: if the beneficiary in Shapira were gay, what public policy is advanced by conditioning the inheritance upon his marriage? Is it reasonable to treat the beneficiary that way? And his beard?

Lastly, I'll observe that when it comes to testamentary clauses that restrict racially mixed marriages, courts are quite keen to excise those clauses. And rightfully so, in my opinion. Were I King of the Illinois legislature, I would make it known that marriage conditions for testamentary gifts are to be of no effect. You get your whole lifetime to influence your descendants' life choices, and that's all you get.

[Captain Amazing]

Check out Shapira v Union National Bank, an Ohio case in which someone died and left three children. The will stated that all three of them were to get a third of the estate, but the parts for the two boys were conditional on them marrying Jewish girls within seven years after Mr. Shapira's death. The condition was upheld.

It was also upheld in New York (in re Silverstein's Will), and Massachusetts (Gordon v Gordon), but found invalid in Pennsylvania (in re Keffala's Estate) and Illinois (in re Feinberg).

[villa]

I think I agree with the supreme court in this case. The only 'right' that is interfered with is the right to inherit money from someone who doesn't want you to get it.

Well yes and no. People have the right to give their money to whoever they choose and for whatever reasons they choose (anti-terrorism legislation aside).

But this is slightly different. They are using the state to assist in that distribution, through the establishment of a trust. It's settled law that you cannot control the future of your property for ever after you die. So disallowing a trust for violation of public policy isn't that far out there.

That said, I'd probably side with the IL SC here. This isn't a requirement from a centuries old trust. The grandchildren were alive when the trust was created, so overall it sounds reasonable to enforce it.

[ivylass]

What if the terms of the will were secret and withheld from the beneficiaries? Maybe Grandma and Grandpa wanted to see if the kids would "do the right thing" on their own? So Grandboy marries Mary Catherine instead of Sarah, then five years later, the Grandfolk are killed in a car accident. If he didn't know that his inheritance was contingent on him marrying a Jewish girl, could he still have a case?

[Bricker]

It was also upheld in New York (in re Silverstein's Will), and Massachusetts (Gordon v Gordon), but found invalid in Pennsylvania (in re Keffala's Estate) and Illinois (in re Feinberg).

Um... isn't this thread about In re Feinberg, which has now yielded a different result on appeal to the Illinois Supreme Court?

[Bricker]

What if the terms of the will were secret and withheld from the beneficiaries? Maybe Grandma and Grandpa wanted to see if the kids would "do the right thing" on their own? So Grandboy marries Mary Catherine instead of Sarah, then five years later, the Grandfolk are killed in a car accident. If he didn't know that his inheritance was contingent on him marrying a Jewish girl, could he still have a case?

I have no idea, except to say there's almost certainly no Due Process requirement for a beneficiary to be made aware of the terms of a bequest before it vests. Apart from that, I got nuthin. (Except a comment on the aforementioned green tile ceiling).

[Captain Amazing]

Um... isn't this thread about In re Feinberg, which has now yielded a different result on appeal to the Illinois Supreme Court?

Oh, sorry. It WAS against public policy in In re Feinberg, until recently. :) (Sorry, I was reading the appellate court decision)

[Tom Tildrum]

I imagine that we will see this line of cases repeated in a new context, as intolerant decedents try to condition bequests on a requirement that the beneficiary marry a person of the opposite sex.

[Muffin]

From across the lake in Ontario, I expect that such a testamentary term would be found void for being contrary to public policy.

Why? To keep it short, have a look at a couple of examples provided by Canada's leading trusts expert and current Ontario Court of Appeal justice, Eileen Gillese:

"Example: X leaves all her estate in trust for her son on condition that he never converts from Catholicism to Judiasm." "The condition is intended to preclude the son from freely chosing the religion he wishes and will be held contrary to public policy."

"Example: My property is to be sold and the proceeds held in trust, but the property may not be sold to Jews." "This condition will be deemed discriminatory and void for public policy reasons."

If that isn't enough, have a look at it from a restraint of marriage position. When it comes to marriage, a trust term that prohibtits marriage entirely will fail, but a term that resticts a person from marrying a particular person will usually succeed. In the OP's matter, the restriction is not against a particluar person, but rather is against a huge class of persons based entirely on religion.

When combining the restiction of religion aspect and the restriction of marriage aspect, I expect the clause would fail. Am I certain that it would fail? No, however, I would happily take such a case in Ontario for a beneficiary, but I would probably either duck representing an estate trying to uphold the term or require one hell of a large retainer.

The Province of Ontario ain't in the USA (at least that's what they tell me), so ymmv.

[Muffin]

I imagine that we will see this line of cases repeated in a new context, as intolerant decedents try to condition bequests on a requirement that the beneficiary marry a person of the opposite sex.And given the recent tossing of the prosecution of a polygamist in B.C., you could add "only one person at a time" to that.

[DigitalC]

Talk about putting pressure on someones marriage though. "How many millions did YOU give up to marry me?" is gonna win you a whole lot of arguments.

[Captain Amazing]

From across the lake in Ontario, I expect that such a testamentary term would be found void for being contrary to public policy.


Probably would. Check out Re Fox Estate, which didn't really deal with this question directly (a executor of an estate diverted property that the will said should go to her son, because she was unhappy he married a non-Jewish girl.), but I believe there was also conversation about this hypothetical.

Also, look at the Leonard Foundation Trust case (the provisions of Leonard's will setting up the Leonard Foundation were that the scholarships it distributed should go to "a British Subject of the White Race and of the Christian Religion of the Protestant form", and that provision was, in 1990, found to be unacceptable).

[Anne Neville]

Does it have to be an Orthodox Jew or can a Reform Jew qualify?

Conservative and Reform Jews do conversions to Judaism that Orthodox Jews do not view as valid. What if one of the grandchildren married such a convert, who was recognized as Jewish by some Jews but not others?

Orthodox and Conservative Judaism say that you're Jewish if your mother is Jewish. Reform Judaism recognizes patrilineal descent as well- if your father is Jewish and your mother is not, but you are raised Jewish, they consider you Jewish. What happens if one of the grandchildren marries someone from a situation like that?

[Kimmy_Gibbler]

The biggest problem doesn't seem to be public policy but of interpretation. I assume that the bequest is a bit more specific, but if not, how does one define "of the Jewish faith"? Does that mean a practicing Jew or does being born into Judaism count? Does it have to be an Orthodox Jew or can a Reform Jew qualify? I didn't read the link to the actual opinion, but it wouldn't surprise me if the Illinois Supreme Court, whether stated or not, gave extra berth to this clause given that Jewishness is both a religious and ethnic concept. As a minority with a long history of persecution, Jews may have more of a stake in ensuring the survival and continuation of their culture and religion, thus making this particular provision not contrary to public policy.

This is as opposed to the thread title concerning conservative Catholics, since they are not a distinct group and it would be difficult to measure what exactly constitutes a conservative Catholic. Or Catholic for that matter, since that could include a Marionite Christian or a few other small denominations that still use the name "Catholic" in some variation.

Conservative and Reform Jews do conversions to Judaism that Orthodox Jews do not view as valid. What if one of the grandchildren married such a convert, who was recognized as Jewish by some Jews but not others?

Orthodox and Conservative Judaism say that you're Jewish if your mother is Jewish. Reform Judaism recognizes patrilineal descent as well- if your father is Jewish and your mother is not, but you are raised Jewish, they consider you Jewish. What happens if one of the grandchildren marries someone from a situation like that?

You're fighting the hypothetical. You can presume that the bequest is worded such that these ambiguities do not occur. Now on to the question: Should your dead grandparents be permitted to influence your marital decisions by giving you a million dollar testamentary jackpot if you marry someone they approve of?

[villa]

Now on to the question: Should your dead grandparents be permitted to influence your marital decisions by giving you a million dollar testamentary jackpot if you marry someone they approve of?

I've got less of an issue (though still some misgivings) about them being allowed to do it to their grandchildren than to later generations.

A conditional gift to people you know sounds more reasonable to me than trying to control the life of as yet unborn future generations.

[Paul in Qatar]

Contracts impacting the institution of marriage are, I thought, null.

[villa]

A prenup is a contract impacting the institution of marriage, and it is not void.

[Gorsnak]

So, was it a pleasant pastel shade, or more of a nauseating lime?

[Wheelz]

Now on to the question: Should your dead grandparents be permitted to influence your marital decisions by giving you a million dollar testamentary jackpot if you marry someone they approve of?Actually, I find this much less objectionable than I do somebody who argues -- all the way the state Supreme Court! -- that they automatically have a right to money somebody else earned just because they're related.

[The Other Waldo Pepper]

Contracts impacting the institution of marriage are, I thought, null.

Impacting, no. Precluding, yes.

[The Second Stone]

Well, it is not their money anymore once it is put into the trust. Or even for that matter, after they die without a trust. It is a question of whether the interpretation of the law is correct, and if it is, should the legislature change it, and if they do change it, is it enforceable under religious freedoms protections of the state constitution and federal constitution.

My recollection of my Wills & Trusts class was that this sort of thing was allowed.

[Tastes of Chocolate]

What if the will were worded differently?
What if Max and Erla set up a trust fund that would give a $1 mill wedding gift to each grandchild upon their first marriage, provided they marry a Jew. Any left over money, after X years, would be donated to the local synagogue/homeless shelter/humane society.

Now we have Max and Erla offering a gift for getting married to a Jew, not withholding an inheritance. Would this pass?

[Chronos]

The way I see it, the grandparents here are being jerks, but are legally within their rights. There would be no dispute if they just said "Distribute the estate uniformly among Saul, David, and Hymie, but nothing to Max, just because we don't like him.", correct? If "just because we don't like him" is a valid reason to cut off Max, then isn't "He married a goyim" also a valid reason?

On the other hand, there's also nothing stopping the descendants from further redistributing the estate amongst themselves, is there? It might be best for long-term family harmony if the Jewish-married descendants (who got a full share) voluntarily gave up some for their inappropriately-married siblings and cousins.

[Kimmy_Gibbler]

Actually, I find this much less objectionable than I do somebody who argues -- all the way the state Supreme Court! -- that they automatically have a right to money somebody else earned just because they're related.

Do you think Grandma and Grandpa were surprised to learn--after all that toil!--that one day they would die and somebody else would get their property?

We used to have a form of ownership known as "fee tail" (http://en.wikipedia.org/wiki/Fee_tail) that gave the grantee what amounted to an inalienable (that is, unsellable) life estate and automatically passed, in a similar form, to the grantee's heirs. They likewise took an inalienable life estate that passed automatically to their heirs, and so on.

The obvious objective to this form of ownership is to keep the property in the family; an objective most people find inoffensive, perhaps even desirable. It nevertheless proved very unpopular with those who held the entailed land, since it represented an asset with a significant cost of carry but which could not (without a particulary byzantine legal operation called the "Common Recovery" (http://en.wikipedia.org/wiki/Common_Recovery)) be converted into cash.

Back to the principle that Grandma and Grandpa, by virtue of the sweat of their brow, control the disposition of their assets after death. Should Grandma and Grandpa be able to direct the marriages of their progeny into eternity by entailing Blackacre and subjecting it to a shifting executory interest* such that the tenure expires if a mixed marriage is entered into? Or can we not countenance that death might mean giving up some power to influence what goes on in this mortal coil?


* Yes, I'm pretty sure fee tail can't be altered in this way. Don't fight the hypothetical.

[Muffin]

A prenup is a contract impacting the institution of marriage, and it is not void.In Ontario, terms in a pre-nup or any other domestic contract may be void due to being contrary to policy.

A few weeks back, a judge changed the wording in a draft consent order from "This Court order that the child shall be raised in the Christian faith" to "This Court finds that the parties agree that the child shall be raised in the Christian faith." Note that the judge was not willing to make the term in to something enforcable.

It's quite remarkable what some folks will try to put in a pre-nup. (One of my clients was asked to sign a prenup that required her to not go outside the home except in a burqa with full head covering and veil in the presence of the husband for the purpose of atttending mosque, and to have at least one baby per year for the first three years, failing which she would be required to consent to a divorce and not have the dowery returned.)

Just because a couple of consenting adults make a contract that affects only the two of them does not necesarily mean that all the terms of the deal will be enforcable.

[Kimmy_Gibbler]

The way I see it, the grandparents here are being jerks, but are legally within their rights. There would be no dispute if they just said "Distribute the estate uniformly among Saul, David, and Hymie, but nothing to Max, just because we don't like him.", correct? If "just because we don't like him" is a valid reason to cut off Max, then isn't "He married a goyim" also a valid reason?

That's certainly true. But decedents require the assistance of the state to pass their assets. And the question is whether the state should withhold that assistance, especially when it interferes with something we like to encourage, namely that people enter happy, fulfilling marriages that are not contracted just to get an inheritance.

Public policy isn't the end of the story, of course. If the grandparents disinherited a grandchild because, during the lifetime of the grandparents, the grandchild married someone not approved of, the courts wouldn't undo that disinheritance. What we seem to balance is (1) our natural inclination to allow the owner of property to dispose of that property however she sees fit, (2) our public policy interest in promoting freely chosen spouses, and (3) our interest in preventing property ownership from being cluttered with conditions that really only matter to people who long ago became worm food.

My own take is that the combination of (2) and (3) outweigh (1) [and I would add that (3) alone is not enough to outweigh (1), there needs to be an additional public interest before we can muck around with the testator's wishes].

[Chronos]

(And the pedant in me feels the need to correct myself: I should have said "goy", right? Marrying goyim would make one a polygamist, I think.)

[villa]

In Ontario, terms in a pre-nup or any other domestic contract may be void due to being contrary to policy.

...

Just because a couple of consenting adults make a contract that affects only the two of them does not necesarily mean that all the terms of the deal will be enforcable.

Indeed. ANY contract can be void due to public policy. But Paul in Qatar's comment suggested contracts impacting marriage were, by their nature, void. And that is bollocks.

[Bryan Ekers]

One of my clients was asked to sign a prenup that required her to not go outside the home except in a burqa with full head covering and veil in the presence of the husband for the purpose of atttending mosque, and to have at least one baby per year for the first three years, failing which she would be required to consent to a divorce and not have the dowery returned.

Of course, the irony is that they were baptist.

[Bricker]

So, was it a pleasant pastel shade, or more of a nauseating lime?

Limeish, with odd spots that looked like water discoloration.

[Quartz]

Educate a foreigner here: isn't freedom of religion part of the US Constitution? So such a will would be unconstitutional. Right?

[Spoons]

Educate a foreigner here: isn't freedom of religion part of the US Constitution? So such a will would be unconstitutional. Right?No. The US Constitution (more specifically, to address your question, the US Bill of Rights) protects Americans from having their rights infringed by their own government. A will, being a matter of private law, cannot be unconstitutional. It can have many problems that prevent it being executed, and be found void for a number of reasons, but "unconstitutionality" will never play a role.

[Kimmy_Gibbler]

No. The US Constitution (more specifically, to address your question, the US Bill of Rights) protects Americans from having their rights infringed by their own government. A will, being a matter of private law, cannot be unconstitutional. It can have many problems that prevent it being executed, and be found void for a number of reasons, but "unconstitutionality" will never play a role.

That's not really true. In Shelley v. Kramer, the Supreme Court found that judicial enforcement of a racially-restrictive covenant violated the Equal Protection Clause of the Fourteenth Amendment.

Shelley v. Kramer was brought up in Shapria v. Union National Bank, the Ohio case noted above. The Shapira legatee argued that judicial enforcement of the Jewish marriage provision abridged his fundamental right to choose his spouse, a right long held to be constitutionally protected. The court held that the provision did not abridge his right to marry, only whether he would inherit or not. The court allowed in dicta that "if the facts and circumtances of this case were such that the aid of this court were sought to enjoin Daniel's marrying a non-Jewish girl, then the doctrine of Shelley v. Kraemer would be applicable, but not, it is believed, upon the facts as they are."

I take this to mean that if the court were requested to actually forbid or compel a marriage (the word enjoin has two different senses, and I think the court intends them both), then Shelley v. Kramer would apply. In Shelley, an injunction against the actual sale of the property was sought. Here, however, Daniel (the legatee) can still marry whomever he wishes; the judicial enforcement creates an inducement rather than affecting Daniel's ability to execute any particular marriage.

[Spoons]

Thanks, Kimmy. Good to know!

[Markxxx]

Public policy address wide issues not narrow ones. If the will had stipulated that the person never marry it would be against public policy. But this isn't what it said, it said you must marry in the stated faith.

It's highly unlikely that one couldn't find a suitable marriage partner within one's faith, unless you're a Shaker or some other religion with a few members left.

No where in the US Constitution or any judical ruling do you find rights to be 100% absolute. It's kind of like if someone kills my wife I have a right to see to it that that man is tried and convicted, but I don't have a right to decide what his punishment will be.

[Paul in Qatar]

Indeed. ANY contract can be void due to public policy. But Paul in Qatar's comment suggested contracts impacting marriage were, by their nature, void. And that is bollocks.

So noted.

[Polycarp]

Removed -- Kimmy said it first, and better.

[Eva Luna]

(And the pedant in me feels the need to correct myself: I should have said "goy", right? Marrying goyim would make one a polygamist, I think.)

Correct on both counts. (Unless you're using "marry"as a transitive verb.)

[Muffin]

If any of you estate lawyers happen to come across a female beneficiary who is about to be cut out of a gazillion dollar bequest for lack of a liberal atheist to marry . . .

[smithsb]

cut out bits .......

Lastly, I'll observe that when it comes to testamentary clauses that restrict racially mixed marriages, courts are quite keen to excise those clauses. And rightfully so, in my opinion. Were I King of the Illinois legislature, I would make it known that marriage conditions for testamentary gifts are to be of no effect. You get your whole lifetime to influence your descendants' life choices, and that's all you get.

Okay, my mind boggles easily. I agree with the quote above. Is the sense of the arguments presented that the Illinois Supremes were okay with religious restrictions but if it had been on race; they would have struck down? What about sex (must marry opposite)? Yea or nay.

In my simplified ideal existence; race, gender, religion, age, national origin ... are not legitimate means to discriminate. All involve large classes of people. Shouldn't there be equal treatment under state laws as well?

[The Other Waldo Pepper]

In my simplified ideal existence; race, gender, religion, age, national origin ... are not legitimate means to discriminate. All involve large classes of people. Shouldn't there be equal treatment under state laws as well?

But let's just be clear: if Granny is still alive, and patiently explains that you're out of the will if you marry That Colored Fella -- that's fine, right? Until her dying day, Granny can discriminate by race, gender, religion, age, and national origin as she pleases: she can shower money each year on Grandson #2 and #3 (who married nice Jewish girls from the old country) while ignoring Grandson #1 (who didn't) -- and if Grandson #2 eventually gets divorced and takes up with a Baptist from Harlem or something, Granny can at that point decide she'll leave everything to #3, yes?

[Muffin]

Yes. Granny can decide not to make a bequest to whomever she pleases. The constraints only come in if there is a bequest.

[Nava]

Public policy address wide issues not narrow ones. If the will had stipulated that the person never marry it would be against public policy. But this isn't what it said, it said you must marry in the stated faith.

It's highly unlikely that one couldn't find a suitable marriage partner within one's faith, unless you're a Shaker or some other religion with a few members left.

That assumes that the grandchildren are and forever remain of that stated faith. A head count of people on these boards who have changed religions (or abandoned them) at some point in their lives would produce quite a high percentile.

[Stratocaster]

Public policy isn't the end of the story, of course. If the grandparents disinherited a grandchild because, during the lifetime of the grandparents, the grandchild married someone not approved of, the courts wouldn't undo that disinheritance. What we seem to balance is (1) our natural inclination to allow the owner of property to dispose of that property however she sees fit, (2) our public policy interest in promoting freely chosen spouses, and (3) our interest in preventing property ownership from being cluttered with conditions that really only matter to people who long ago became worm food.I don't see any conflict whatsoever between (1) and (2). My opinion of course, in answering the OP's question about what ought to be law. One may marry whomever one pleases. That's completely distinct from whether or not someone sets that decision up as a condition of giving one some coin. Unmanageable clutter in wills carries some weight, I suppose. For example, a complex arrangement that required generations of administrators not directly paid for by the estate--I can see that public policy might legitimately have an opinion on such a matter. Everything else? None of our business.

Marry who you want, leave your money in any way you want. The whole counter argument, ISTM, supposes some sort of entitlement to that money. There is none, IMO, except for certain exceptional situations (e.g., minors completely ignored in a parent's will). And if there is none, than there can be no "unreasonable" restriction. There can be no undue restriction for access to money that in ANY event is yours only at the discretion of someone else (as a general rule).

[Kimmy_Gibbler]

Everything else? None of our business.

Except this: Dead people can't transfer their assets. They require the connivance of the living to do that. So when a testator puts an objectionable condition in his will, saying something like "my house to my son so long as he doesn't marry out of the white race," this is not a transfer of assets, this is a request made on us survivors that we effectuate this intent. And one which we, frankly, find deplorable. Now why should we cooperate with this scheme?

Suppose it were just an ordinary inter vivos gift. A father has a house in California that he wants to give to his son. He also wants to condition the gift on his son refraining from entering a mixed marriage. But here's the rub: Dad is halfway around the world in Mongolia and can't monitor his son's romantic relations. So he asks you to monitor his son's love life and report to Dad if the proscribed relationship is entered into. Do you feel at all obligated to honor Dad's request? Of course not. Why should it matter if, instead of being in Mongolia, the reason for not be able to do it himself is that he's dead? It's not like there's any element of unfair surprise. We all know we have a limited time here on Spaceship Earth. It is the fact that it is the living who must settle the affairs of the dead that allows the living to decide, to a certain extent, how that settlement will proceed.

[TwistofFate]

Do they have to stay Jewish?

[Stratocaster]

Except this: Dead people can't transfer their assets. They require the connivance of the living to do that. So when a testator puts an objectionable condition in his will, saying something like "my house to my son so long as he doesn't marry out of the white race," this is not a transfer of assets, this is a request made on us survivors that we effectuate this intent. And one which we, frankly, find deplorable. Now why should we cooperate with this scheme?Why do we cooperate with any intentions set in a will? And I think the operative point is that no one is compelled to effectuate his intent, if by that you mean making sure that only an "acceptable" marriage occurs. Everyone is still free to marry whomever they'd like. Why should we honor the dead guy's intentions as specifically outlined in his will? For the same reason we honor much simpler bequests: that's what he wanted done with his money and (for the most part) it's nobody else's business what his reasons were. We don't decide who should get the dough, we don't decide the conditions (with certain exceptions). Whether you or I would be offended by the condition is immaterial.Suppose it were just an ordinary inter vivos gift. A father has a house in California that he wants to give to his son. He also wants to condition the gift on his son refraining from entering a mixed marriage. But here's the rub: Dad is halfway around the world in Mongolia and can't monitor his son's romantic relations. So he asks you to monitor his son's love life and report to Dad if the proscribed relationship is entered into. Do you feel at all obligated to honor Dad's request? Of course not. Why should it matter if, instead of being in Mongolia, the reason for not be able to do it himself is that he's dead? It's not like there's any element of unfair surprise. We all know we have a limited time here on Spaceship Earth. It is the fact that it is the living who must settle the affairs of the dead that allows the living to decide, to a certain extent, how that settlement will proceed."To a certain extent" is the operative phrase. I've already acknowledged that there is a tipping point, a circumstance where the complications of carrying out the intention place an undue cost that is born by someone else. That's not what's happening here. Let me ask you this: suppose the will cared for any expense associated with ensuring the conditions were measured, even if the cost was trivial, even if it was an administrative cost similar to one carried out for most wills. Would that change your perspective? Or is it still to some material extent a "dead guys' intentions don't count" issue?

[Irishman]

deleted

[BlinkingDuck]

I think the first three responses above fail to appreciate the law's disfavor for trying to control the lives of your relations from beyond the grave. "Their money, their rules" certainly is a pithy maxim, but then again, so is "We all gotta go sometime."

I am not a lawyer...so will not respond based on law but will respond based on how I feel about this.

When you are dead...you are dead. The dead shouldn't have assets. The dead should not be interfering with the living.

It was your money...but it isn't now. So, in order to have your money go to where you want it to go your will should dispense with the money/assets NOW. No holding on with strings or trying to manipulate people. Your estate needs to dispensed with because YOU are dead...you no longer can have assets.

JMHO.

{This also relates to how I feel about people complaining about the 'death tax'. No..it is not a tax on the dead or death. You are dead...you no longer have assets. People inheriting your lear jet and billion dollar mansion may have to pay a tax on it...but it isn't YOU paying the tax...because you are dead - you know DEAD...as in no longer a part of this world - gone - goodbye man. The dead don't pay taxes...because they have no assets. :)}