Posted by Eugene Volokh:
Enforcing Trusts That Exclude Family Members Who Marry Non-Jews:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253829063
Max Feinberg's will provided that all his property would go into a
trust. During his wife Erla's life, she'd get income from the trust.
When she died, the property would go to their descendants, but
providing that any descendant who married a non-Jew, and whose spouse
didn't then convert to Judaism within a year of the marriage, would be
"deemed deceased" and would forfeit the share. Erla also had a "power
of appointment" under which she could reassign which descendants could
benefit from the trust. Erla exercised this power precisely the way
that Max provided in his will -- by disinheriting the four or out of
five grandchildren who married non-Jews.
A complicated decision today from the Illinois Supreme Court, in [1]In
re Feinberg, upheld the validity of Erla's decision, but left open the
broader question whether Max's wishes could have been enforced in the
absence of the power of appointment exercised by Erla:
[T]his is not a case in which a donee, like the nephew in the
illustration, will retain benefits under a trust only so long as he
continues to comply with the wishes of a deceased donor. As such,
there is no �dead hand� control or attempt to control the future
conduct of the potential beneficiaries. Whatever the effect of
Max�s original trust provision might have been, Erla did not impose
a condition intended to control future decisions of their
grandchildren regarding marriage or the practice of Judaism;
rather, she made a bequest to reward, at the time of her death,
those grandchildren whose lives most closely embraced the values
she and Max cherished.
Still, the decision had some interesting language that might be
relevant more broadly:
Michele argues that the beneficiary restriction clause discourages
lawful marriage and interferes with the fundamental right to marry,
which is protected by the constitution. She also invokes the
constitution in support of her assertion that issues of race,
religion, and marriage have special status because of their
constitutional dimensions, particularly in light of the
constitutional values of personal autonomy and privacy.
Because a testator or the settlor of a trust is not a state actor,
there are no constitutional dimensions to his choice of
beneficiaries. Equal protection does not require that all children
be treated equally; due process does not require notice of
conditions precedent to potential beneficiaries; and the free
exercise clause does not require a grandparent to treat
grandchildren who reject his religious beliefs and customs in the
same manner as he treats those who conform to his traditions.
Thus, Michele�s reliance on Shelley v. Kraemer (1948), is entirely
misplaced. In Shelley, the Supreme Court held that the use of the
state�s judicial process to obtain enforcement of a racially
restrictive covenant was state action, violating the equal
protection clause of the fourteenth amendment. This court, however,
has been reluctant to base a finding of state action �on the mere
fact that a state court is the forum for the dispute.� Indeed,
Shelley has been widely criticized for a finding of state action
that was not ��supported by any reasoning which would suggest that
�state action� is a meaningful requirement rather than a nearly
empty or at least extraordinarily malleable formality.�� Adoption
of K.L.P., 198 Ill. 2d at 465, quoting L. Tribe, American
Constitutional Law 1698 (2d ed. 1988).
The court reversed a 2-1 appellate court decision to the contrary,
which I [2]blogged about last year. Thanks to [3]How Appealing for
the pointer.
References
1.
http://www.state.il.us/court/Opinions/SupremeCourt/2009/September/106982.pdf
2. http://www.volokh.com/archives/archive_2008_08_10-2008_08_16.shtml
3. http://howappealing.law.com/
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