People often place conditions on inheritances — for example, requiring a grandchild to complete college before she can receive trust proceeds — but is it legal for someone to dictate who their heirs can and cannot marry? This is a question that the Illinois Supreme Court is now weighing.

Max Feinberg established a trust that contained a clause disinheriting any of his grandchildren if they married outside the Jewish faith. Despite this clause, four of his five grandchildren chose to marry spouses who were not Jewish. After both Max and his wife, Erla, had died, one of the grandchildren sued her father and an aunt and uncle — the co-executors of Max and Erla’s estates — claiming that the three had conspired to evade estate taxes and had misappropriated millions of dollars from the estates. The co-executors countered that the grandchild had no legal standing to sue them because she was no longer a beneficiary of the estate, having married a non-Jew.

A trial court ruled that the clause disinheriting the grandchildren was invalid because it was against public policy by placing a significant limitation on the grandchildren’s freedom to marry. The Feinbergs’ children appealed, arguing that many jurisdictions recognize such clauses and that Max had the right to determine the conditions for the distribution of his and his wife’s estates.

In June 2008, the Appellate Court of Illinois upheld the trial court’s ruling, agreeing that the provisions are against public policy. The court pointed out that Illinois has a longstanding history of opposing provisions that make it harder to marry or that encourage divorce, and further noted that the Restatement (Third) of Trusts, which interprets trust law for judges and lawyers, also comes out against such clauses. The court did acknowledge that some states allow people to make these decisions regarding their property. And one of the three judges issued a strong dissent, writing that “Max and Erla had a dream. . . to preserve their 4,000 year old heritage.”
The Feinberg children appealed again, and the Illinois Supreme Court has agreed to hear the case.

For the Appellate Court of Illinois’ ruling in the case, In re Estate of Feinberg, 383 Ill. App. 3d 992 (1st Dist. June 30, 2008), click here.

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