In In re Estate of Max Feinberg, (IL Ct. App., June 30, 2008), an Illinois District Court of Appeals, in a 2-1 decision, held unenforceable decedents' testamentary provision disinheriting any grandchild who marries outside the Jewish faith unless the spouse converts within one year of the marriage. Justice Cunningham delivering the opinion of the court held that public policy invalidates such provisions because they seriously interfere with an individual's right to marry the person of his or her choice. The opinion cites Restatement Third of Trusts that takes this position as well. Justice Quinn concurred specially, in order to more specifically counter the arguments of the dissent. Justice Greiman dissented, pointing out that a majority of other jurisdictions validate such provisions. He characterized the clause as an attempt by Max and Erla Feinberg to "to preserve their 4,000 year old heritage." An op-ed in yesterday's St. Louis Jewish Light discusses decision.
Thursday, August 14, 2008
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3 comments:
This is a very interesting decision. I'm wondering if any other courts have issued similar rulings? I sent this link out to my congregation and they seem fascinated by it. I plan on addressing this issue (not necessarily from the legal point of view) in my sermon for this shabbat.
Rabbi Simon,
I hope you don't find the ethical implications of this case the least bit ambiguous. In effect, the deceased couple have posthumously offered their married grandchildren a $250K bounty for a divorce or a conversion, their choice.
It is precisely the "legal point of view" that should concern us all. Alive, we have the right to give or not give, to whom we choose, for whatever reasons we might have. This court is saying that right is surendered at death. That's a question your congregation should seriously consider.
I sympathize with the desire of the decedant to promote his ethnic purity and religion, although neither are mine.
Perhaps a more legally acceptable method would have been to have created an independent fund or trust administered by third parties. The fund would pay out to the designated recipients (not heirs) year by year as long as the recipients met the conditions.
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