Marry Jewish or lose $250,000? Illinois court says no

BY GERALD GREIMAN

Many of us try to run our children’s and grandchildren’s lives, to the extent we can. And this is no recent phenomenon. In Shakespeare’s The Merchant of Venice, Portia laments, “I may neither choose who I would nor refuse who I dislike; so is the will of a living daughter curb’d by the will of a dead father.”

But how far can we go? Can we try to exert control over our offspring from the grave? That was the question addressed by the Illinois Appellate Court in the recently decided case of In re Estate of Max Feinberg.

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Max and Erla Feinberg created an estate plan to distribute their considerable assets after their deaths. They left $250,000 to each of their five grandchildren who survived them. However, they provided that a grandchild’s bequest would be lost if he or she married outside the Jewish faith, unless the grandchild’s spouse converted within one year of the marriage.

Upon Max and Erla’s deaths, all five of their grandchildren were married, but only one to a Jewish spouse. A legal battle ensued over whether the grandchildren marrying outside the Jewish faith had forfeited their bequests. The grandchildren seeking to preserve their gifts asserted that the forfeiture provisions were unenforceable as violating public policy. Their argument was that the forfeiture provisions unduly restricted their right to marry a person of their choosing. In response, other family members asserted that the Feinbergs had the right to distribute their assets as they wished, and their estate plan should be enforced as written.

A majority of the three-judge panel that decided the case ruled that the provision forfeiting a grandchild’s bequest if he or she married outside the Jewish faith was contrary to public policy and therefore unenforceable. Accordingly, Max and Erla’s efforts to attach strings to their gifts were rebuffed and all of the grandchildren were allowed to receive their bequests.

In support of its decision, the majority pointed to certain past Illinois cases, which it read as reflecting a general principle “that testamentary provisions which act as a restraint upon marriage or which encourage divorce are void as against public policy.” The majority deemed invalid the condition attached to the Feinbergs’ bequests to their grandchildren because it “seriously interferes with and limits the right of individuals to marry a person of their own choosing.”

The third judge on the panel, Justice Alan Greiman — my cousin — dissented. He reasoned that the Feinbergs were seeking to “preserve their 4,000-year-old heritage” by providing that their assets “be used to encourage the preservation of the Jewish faith and blood.” He pointed to cases in other jurisdictions in which provisions like the Feinbergs’ had been upheld, and said that the cases relied on by the majority involved efforts to encourage divorce and thus were distinguishable from the present controversy.

Justice Greiman went on to say that the duty of the court was not to determine whether the Feinbergs’ judgment was wise, but rather “to honor a testator’s intention within the limitations of law and of public policy.” He concluded that the prerogative of a testator “to dispose of his estate according to his conscience is entitled to as much judicial protection and enforcement as the prerogative of a beneficiary to receive an inheritance.”

In my view, the issue presented by Feinberg is a close one; sound arguments can be made by both sides. It is true, as Justice Greiman points out, that the Illinois cases relied on by the majority have more to do with divorce than marriage, and that a number of cases from other jurisdictions have adopted the Feinbergs’ viewpoint. However, it also is true that most of those cases are more than 50 years old, and more modern legal commentary seems to weigh in favor of invalidating restrictions like the Feinbergs’.

In addition, the Feinberg case can be likened to the landmark case of Shelley v. Kraemer, in which the U.S. Supreme Court held unenforceable, on Fourteenth Amendment equal protection grounds, restrictive covenants in real estate deeds prohibiting property from being sold to non-Caucasians. While the Fourteenth Amendment prohibits only state action, not private conduct, the Supreme Court reasoned that the necessary state involvement was present in Shelley because state courts were being used to judicially enforce the restrictive covenants.

The same might be said here. Estates are administered through probate courts, and judges routinely are called upon to resolve disputes between beneficiaries, as was the case in Feinberg. Analogizing to Shelley v. Kraemer, a forceful argument can be made that involving state judicial machinery in enforcing testamentary provisions that discriminate on the basis of religion is contrary to public policy and may even be unconstitutional.

Further, were provisions like the Feinbergs’ held enforceable, that could give rise to additional difficult questions which could lead courts down a slippery slope towards a judicial quagmire. For instance, what kind of spousal conversion should suffice to preserve a Feinberg grandchild’s bequest? Orthodox? Reform? Moreover, who is deemed Jewish and who decides that issue — no easy questions, as reflected by the experience of many in seeking to qualify to be married as Jews in Israel.

Also, what kinds of similar testamentary provisions would have to be deemed judicially enforceable if the Feinberg provisions were enforced? Could the child or grandchild of a Caucasian be disinherited from marrying someone black? What about marrying someone disabled or incapable of having children?

While, as noted, the question confronting the Feinberg court is a close one, the view of the Greiman writing this article is that the majority in Feinberg got it right and properly refused to enforce disinheritance of the grandchildren who chose to marry non-Jews. Accordingly, had this writer been a member of the court deciding Feinberg, rather than my cousin, the Greiman view reflected in the court’s decision would have been different.

Gerald Greiman, a lawyer, is a partner at Spencer Fane Britt & Browne LLP and co-chair of the firm’s Litigation Practice Group. He is a board member of the Jewish Community Relations Council and former Chair of its Religion-State Committee.