Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, September 29, 2009

Illinois Court Declines to Invalidate Religious Marriage Condition Placed on Inheritance

IllinoisIn re Feinberg, 2009 Ill. Slip Op. 106982 (SC Sept. 24, 2009): The Illinois Supreme Court decided whether to invalidated an inheritance condition based on marrying within the Jewish faith.  Below is the case summary for the case provided by the Supreme Court of Illinois:

Max Feinberg, who died in 1986, left a wife, Erla, two adult children, and five grandchildren. He had executed a will that created trusts from which his widow would receive income during her lifetime. At her death, the trust assets were to be combined, and half of these assets were to be held in trust for the benefit of the grandchildren during their lifetimes, provided they had not married out of the Jewish faith, in which case they were to be “deemed deceased” on the date of such a marriage. Shares of such “deceased” grandchildren would revert to the settlor’s two children. Between 1990 and 2001, all of the five grandchildren married.

Distribution of decedent’s assets did not go according to this original plan, however, because Max also gave his widow a limited lifetime power of appointment as to his descendants which she exercised in 1997. Instead of lifetime trusts, she directed that, at the time of her death, fixed $250,000 sums be given to each of her two children and to each of her five grandchildren. She provided, however, that, as to the latter, her husband’s religious-restriction clause must be complied with. Erla died in 2003. By this time, although all the grandchildren had married, only one had complied with the religious restriction.

This situation resulted in several different proceedings which were consolidated in the circuit court of Cook County. The religious-restriction clause was invalidated there as contrary to public policy, and the appellate court affirmed.

In reaching a different result, the Illinois Supreme Court found that the issue is not Max’s original scheme of lifetime trusts for the grandchildren, but the distribution which was authorized by Erla, giving out fixed sums at the time of her death. The supreme court declined to hold the religious-restriction clause void. The grandchildren had no vested interests and Erla had merely created a condition precedent that operated on the date of her death to determine who was qualified to take. The supreme court said Erla was free to make a distribution in favor of grandchildren whose lifestyles were approved of over other grandchildren who made choices which were disapproved of.

The judgment of the appellate court was reversed, and the cause was remanded to the circuit court for further proceedings.

For a discussion of this case, see Christopher Wills, Ill. high court OK's 'Jews only' inheritance, AP, Sept. 24, 2009.  The article notes that because the will provided for inheritance based on marriage status at the time of Erla's death, the provision did not attempt to control marriage choices or act as an incentive for divorce.  The ruling did not address whether the religious marriage restriction would be valid under other circumstances.

Special thanks to Lynne M. Bahrami (J.D. Candidate, University of North Carolina) and William P. LaPiana(professor, New York Law School) for bringing this case and article to my attention.


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Who is the trustee of the trusts? It appears as if the trustee not the family members, that is the two surviving children of the deceased or the five grandchildren bought about this lawyers picnic. I doubt that either of the two parents of the grandchildren would have bought about the problem as they would have alienated their children and it would have been no benefit for any of the grandchildren to cause the problem. Hence it must have been the trustee who was probably a lawyer who stood to gain financially from the destruction of this family.

Posted by: diarmuid | Oct 1, 2009 4:10:53 PM

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