For Better or Worse: The “Jewish Marriage Clause” Debate Marches On

The Illinois case, In re Estate of Max Feinberg has drawn national attention and raises thorny issues, including how individual freedoms should be interpreted in a post-civil rights world. 

In Feinberg, the Illinois Supreme Court invalidated a trust provision that attempted to disinherit certain beneficiaries if they married persons who were not Jewish.  The court found that the clause violated public policy as discouraging marriage.  Most states hold that provisions discouraging marriage or encouraging divorce violate public policy; however, there’s no consensus on faith-based restrictive clauses.  For example, in Shapira v. Union National Bank, an Ohio court upheld a provision requiring the decedent’s son to marry a Jewish woman within seven years of the testator’s death in order to collect his inheritance. 

According to Restatement Third of Trusts, the Feinberg provision is clearly invalid.  The Restatement specifies that a provision eliminating a beneficiary’s rights to a trust if he marries someone outside a designated religion is void as a violation of public policy.  The Restatement clarifies: trust provisions are generally invalid if they “encourage disruption of a family relationship . . . discourage formation or resumption of such a relationship . . . [or] seriously interfere with or inhibit” the beneficiary’s freedom to divorce or marry “by limiting the beneficiary’s selection of a spouse.”  Given how the provision in question has caused major turmoil within the Feinberg family, it would be invalid under the Restatement.

If Feinberg goes all the way to the U.S. Supreme Court, I hope the Justices will give strong consideration to the fact that the clause does not put the grandchildren’s fundamental right to marry at stake; instead, it merely threatens their inheritance.  Furthermore, a testators’ freedom to dispose of their personal property as they wish has long been respected.  Do we really want to whittle away at this freedom?