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?
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.
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.
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?
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.
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” 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”) 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.
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.
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].
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.
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.