The Will with the Jew-Only Clause

September 26, 2009 By 33 Comments

Max Feinberg, a dentist from Chicago, died in 1986. His wife Erla took over his estate and she died in 2003. After that, their five grandchildren stood to inherit at least $250,000 apiece.

There was only one catch (PDF). According to Max’s will:

… any such descendant who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year of marriage would be “deemed deceased for all purposes of this instrument as of the date of such marriage” and that descendant’s share of the trust would revert to [Max's two children] Michael or Leila.

In other words, Feinberg specified in his will that the grandchildren would only receive the money if they married a Jewish person, essentially to carry on his own heritage and faith — Marry a gentile and you’re cut from the will. (If the grandchildren were “deceased” or married to a non-Jew, Max’s children would split that share of the money.)

One of the dis-inherited grandchildren filed a lawsuit. Lower courts sided with her. It made sense because of all the theoretical problems — for example, would the will encourage a grandchild to marry a Jew, get the inheritance money, then get divorced the next day and marry someone else?

The case made it to the Illinois Supreme Court. That court had to decide whether or not it was legal to allow wills to “base inheritance on someone’s marriage and religion.”

On Thursday, the court issued its ruling:

The will was acceptable. Max could say that his beneficiaries would only receive their share of the inheritance if they followed his personal wishes about their religious beliefs.

The state Supreme Court based much of its decision on the fact that [now deceased wife] Erla Feinberg’s will awarded set amounts of money based on the marriage status of the grandchildren at the time of her 2003 death — either they qualified for the money or they didn’t. The court said that meant the will didn’t try to control what the grandchildren would do in the future and didn’t offer any incentive for a particular couple to divorce.

A will that provided money year after year if the heir did not marry a gentile might not pass muster, the court suggested. That’s because it would amount to a dead man trying to control actions for years to come and would encourage divorces so that people could claim an inheritance.

The court said in the ruling (PDF):

There is no question that a grandparent in Max’s situation is entirely free during his lifetime to attempt to influence his grandchildren to marry within his family’s religious tradition, even by offering financial incentives to do so. The question is, given our public policy of testamentary freedom, did Max’s beneficiary restriction clause as given effect by Erla’s appointment violate any other public policy of the state of Illinois, thus rendering it void?

Their answer was no, it did not. In fact, they sided with Max in large part because all the hypotheticals were eliminated. The money would be awarded, they said, based on the status of the grandchildren in 2003, the day that his wife Erla died — “either they qualified for the money or they didn’t.”

The court said that meant the will didn’t try to control what the grandchildren would do in the future and didn’t offer any incentive for a particular couple to divorce.

So, did they get the decision right?

Lawyer and atheist activist Rob Sherman says they did:

The disgruntled granddaughter doesn’t seem to understand that it’s Grandpa’s and Grandma’s money, to do with as they please. They didn’t owe her a cent.

Max and Erla could have given all of their money to their children, instead of to the grandchildren. They could have given all of their money to charity, leaving nothing to family.

…

What the granddaughter doesn’t seem to understand is that the executor of the estate is required to act in the same way that the deceased would have acted if the deceased were still alive to distribute the money himself.

It was Max and Erla’s money. They could have given their own money to anybody they wanted to. It’s their money, to do with as they please. If granddaughter doesn’t like it, too bad. It’s not her money.

Scholars also agree:

Steven Resnicoff, co-director of the DePaul College of Law’s Center for Jewish Law & Judaic Studies, hailed the court decision as consistent with Illinois public policy.

“It’s not just a Jewish clause. It’s a Catholic clause. It’s a Muslim clause,” Resnicoff said. “It’s not uncommon that people want to encourage children to follow in their footsteps.

“Today’s decision emphasizes the principle that, with some exceptions, a person is free to allocate his or her assets as the person sees fit.”

(via Religion Clause)

Filed Under: General, Lawsuits 33 Comments
  • Shannon

    I agree too. You should be able to leave your money to whoever you want, even if you’re being a jerk while doing it. Inheritance is a gift, not a right.

  • Mikael Høilund

    The testament could have been implemented by Max as a “hey, mr. Lawyer, please modify my will to include a list of grandchildren, selected by marriage status, who are to be considered deceased for undisclosed reaons.”

    I think that fact alone leaves the case pretty obviously sound.

  • Liudvikas

    While I find it repulsive that he was such a jerk, he still has the right to be a jerk. And if I was that granddaughter I would be insulted, but rather than file lawsuits I would make sure to find myself a atheist partner just to go against his bigoted views.

  • Amyable Atheist

    (imagining the state of our legal system if every American could seek legal recourse for being descendant of bigots with delusions of racial/ethnic/religious superiority…:-p)

    Thank Zeus for generational progress (although agreed, a lawsuit might not have been the most sophisticated approach for the granddaughter to take)!

  • Delphine

    I agree too. I’m always slightly disgusted at people who consider inheritance their “right”. This sense of entitlement is totally beyond me.

    My mother’s obsessed with leaving her children a large inheritance (while cutting our spouses out of the money). All her children want her to spend it all before she dies. Travel, live, do something, enjoy life. Why sit on your hard earned money to leave them to the next generation? The next generation should be making their own living instead of eyeing someone else’s bank account.

    That also reminds me of a dentist (?) who left 1 million dollars to the woman that gave birth to the most children within a period of 10 years… hilarity ensued.

  • jemand

    In a society with plenty of social support webs and educational and advancement possibilities, inheritance money shouldn’t really count.

    But in a world where you have to have something to get more, where you can’t afford higher education without money, unfair inheritance is wrong. Not educating your daughters, and then only leaving money to sons, leaves women helpless if stuck in a victimizing situation.

    Anyway, the only thing this REALLY argues against is objectivist libertarianism and keeping the government out of welfare and education. Because if you can ensure that everyone has the tools to make it, to be successful, unequal inheritance does not affect their prospects negatively.

    So up the estate tax slightly and use the revenue to make sure all citizens are ensured opportunity and domestic safety.

  • jemand

    oh… and what’s to stop Michael and Leila from saying, ok, wonderful inheritance, now I’m going to give my daughter/niece a gift…

    IMAGINE THAT, she’s getting as much as my other children! For bigoted distribution to stand, it seems that bigotry has got to be rather common in the family.

  • Bobby

    It’s an interesting fight between the right to uphold the rights of the testator and to not testamentary intent and public policy (here of not being a bigot). But the Illinois high court is right, it’s not the trial court’s call to make. But Illinois certainly could and should pass a law invalidating future distributions based on the religious beliefs of the devisees or their spouse.

    This would interfere with people’s freedom, but the legislature gets involved in people’s wills all the time–see how long the probate code is. You can’t disinherit your wife (and in a some states your children too). This wouldn’t be too great of a restraint on a testator’s freedom. He could still individually say, “don’t give anything to Janie, my atheist granddaughter” but not, “if my kids have left the church before I die they’re cut off.”

    @Amyable: you definitely can sue to invalidate a racially- or nationality-based restraint in a will as void against public policy.

    Volokh has a different take on this… that it may violate the Establishment Clause to have the courts in the business of determining who is “of the Jewish faith” http://www.volokh.com/posts/1218748901.shtml

  • littlejohn

    Why fight this? Why not simply declare yourself/your spouse to be a Jew? Is someone going to demand that you prove it? How? Well, if you’re male, there’s one bit of unpleasantness, but not necessarily. I’m circumcised, as are most American males my age, and I’ve never been Jewish. Just fake it.

  • Miko

    @jemand: Inheritance is inherently unfair, no matter how it’s handled.

    Governmental “assistance” programs and “safety” nets are also a terrible idea, since government is an inherently corrupt and corruptible organization which cares more about its own preservation than the welfare of its subjects. Historically, governmental restrictions on female property ownership, inheritance rights, and educational advancement have caused much more harm than the caprice of a few scattered bigoted will-writers could ever hope to. (And regarding other groups, there are always examples such as the Fugitive Slave Laws, etc.) You can argue that things are temporarily a little bit better right now, but as long as bureaucrats control their destiny, the destitute and unlucky will never be free. Plus, if you look at, say, the conditions of unwed teenage mothers today, I think you’d agree that current government policies continue the basic form of historical sexism. Further, any system of welfare imposed by fiat is unjust, which aside from moral issues brings up the problems that: 1) non-recipients tend to look down on and resent recipients and 2) recipients tend to be discouraged themselves, leading to a spiraling cycle of poverty. Combined with a minimum wage, welfare becomes especially pernicious as current benefits are somewhere around 70% of the minimum wage (depending on local variations, of course), effectively telling the poor that they’re not allowed to work at a higher paying (but below minimum wage) job and instead need to rely on the enforced-idleness near-subsistence level government dole. One has to wonder if the system was designed primarily with the intention of encouraging such absolute dependence. (Or, considering that 75% of welfare funds are absorbed in overhead costs, that perhaps the program was created as a cynical attempt to convince cozy upper-middle class voters that the poor were being helped while politicians offer administrative sinecure jobs to well-connected supporters.)

    As for the estate tax, well, it currently costs more to collect than it brings in as revenue. This could conceivably be fixed, but it’d require a lot more than a slight increase in rates.

    We need to face the source of the problem instead of begging politicians to offer a band-aid to the “deserving” poor. Economic justice requires that such a program receive funding from a moral source (i.e., not taxation) and that such a program be applied equally to all (i.e., bureaucrats and politicians don’t get to control the process). Specifically, no distinctions should be made about who is “deserving,” and ideally it should be paid to all without regard to income (to avoid the non-recipient resentment and recipient stigmatization problems). The only practical solution is a citizen’s dividend funded by community collection of rent (cf. chapter 25ff).

  • Miko

    Is someone going to demand that you prove it?

    Yes. They’ll ask your rabbi.

  • DSimon

    Miko, that was quite the off-topic rant! I’m not even disagreeing with your point, but I am saying that you’re opinion-spamming in a rude way.

  • ThatOtherGuy

    That’s the great thing about the U.S.: you are perfectly free to be as much of a douchebag as you want.

    There’s nothing illegal about what that guy put in his will; he was just a horrible, horrible person for having done so, and he reflects badly on everyone who shares his religion, as it is his right to do.

  • Frank

    I think the court was wrong here, and it has nothing to do with anyones right to the money. The granddaughter does not have an inherent right to the money, nor does the grandfather have any inherent right to control who it goes to, as a dead person has no rights of any kind. What this is about is discrimination, pure and simple. The state court here has decided to deny a person money because of their spouses religious beliefs, and I’m reasonably certian that that is unconstitutional. More than 60 years ago the u.s. supreme court ruled that state courts cannot enforce contracts which restrict ownership of property to people of a particular race (Shelley v Kraemer). In what way is that case different from this one?

  • jemand

    @DSimon… I think I baited an Ayn Rand worshiper.

    Oops.

  • Jen

    Just thinking outloud, here. What if they had a gay Jewish grandchild? They can’t get married, and can only get civil-unionized in three counties in Illinois, if I am remembering correctly. What if the grandchild is just irritating?

    Does anyone even believe an engagement/marriage conversion is ever real, anyways? I always find them a little strange, “How funny, that you will only marry a Catholic, and I want to become one right this very second! We are a match made by your religious conviction to push someone into something they aren’t genuine about!” As to the granddaughter, no, she is not entitled to money, but if I were her, and probably some sort of old money family, I might do it for the hell of it. And I would probably make all sorts of rude comments about how much I don’t believe in the marriages of my siblings. Money would RUIN me.

  • Autumnal Harvest

    I agree with Frank and Volokh, I have trouble seeing how this decision is consistent with Shelley v. Kraemer, or the Establishment Clause. It’s true that Max could have modified the will himself to cut various people out of his will for various undisclosed reasons, and he could be as much of jerk as he wanted to while doing that. But what he’s actually done here is different. He’s forced the courts to act as jerks on his behalf. He wants the courts to inquire into someone religion/ethnicity, and then make odious distinctions on his behalf. That’s entirely different.

    For example, this requires the courts to decide if someone is “really a Jew,” which is not a distinction the courts can reasonably make. It is not as simple as Miko suggests, of simply asking someone’s rabbi. Many people consider themselves to be Jewish, but never go to synagogue, just as many people consider themselves Christian, but never go to church. In fact, since Judaism is both a culture and a religion, there are many Jewish atheists. Many Orthodox Jews regard even practicing Reform Jews as not real Jews. Traditional Jewish belief is that “Jewishness” is passed through the mother—i.e. a Jewish father doesn’t make you Jewish, but a Jewish mother does—many modern Jews consider this distinction sexist, but other modern Jews still hold to it. And while circumcision is historically important in Judaism, many Reform rabbis will say that you can be a Jew without it. Is it really consistent with the Establishment Clause for a court to navigate all these questions about whether someone is “really a Jew”?

  • MH

    I agree with the observation that the grandfather made a first class a** of himself.

    I think Autumnal Harvest is on to something that enforcing the will requires answering the question “who is a Jew?” which is something the government is not qualified to answer.

  • Erp

    Actually it is the Executors who make the decision on who is or is not a Jew in this case. I don’t think the grandchildren were claiming that the executor was finding their spouse was not a Jew when their spouse was (which would be where the courts could be making that decision).

  • ChameleonDave

    @Miko, this is an atheist blog, so Ayn Rand cultists should find a better place to rant.

  • veggiedude

    The grand daughter does not have the right to the money. The deceased made a will, and it should be honoured. Now, what about Leona Helmsley? She left millions, and she asked it to be given to various charities but the emphasis was on dogs, and so far, less that 5% has been given to a dog charity by her estate. Where is the outrage there? I hope a court will make a similar decision in that case.

  • muggle

    He can leave it to whoever he wants. It’s his money and should be his right. Besides, wouldn’t it be interfering with religious freedom if the religious weren’t able to put religious restrictions on it. Kinda of like taking the government’s money. If you don’t like grandpa’s restrictions, take a pass on it. I’m horrified that some are saying it isn’t legal to disinherit your offspring. Should be. For any reason you care to. What if they’re irresponsible jerks who will only snort it up their nose? What if they haven’t spoken to you for 20 years?

  • muggle

    Just curious, since I all I know about probate law is that if you die in New York State without leaving a will, it gets divvied up between your children (and I only know that much because I inherited a bit when my father died even though I hadn’t spoke to him in 20 years), to those who are saying the grandchildren have a right to the money simply because they are the grandchildren, what if a sixth grandchild were born in this case after he died?

    After all, it didn’t go to the five until after his wife died close to 20 years later. There certainly may have been more grandchildren. Are they then entitled to make claims on the money? How about great-grandchildren.

    For that matter, the two siblings left out unless their kiddies all married gentiles.

  • Dave

    I have to side with the court as well. There are plenty of legal structures to prevent problematic wills from being enforced. This one does not violate them.

    It’s cumbersome, yes. He certainly didn’t have to deem them “deceased” for purposes of the will. Wills can contain language that devises property based on conditions without having to go quite that far.

    Also, @Bobby, Volokh wouldn’t apply, as I see it. The court wasn’t deciding who’s Jewish and who is not. It’s deciding whether the clause in the will is valid as applied to the grandchildren.

    @muggle – The Rule Against Perpetuities prevents a testator from controlling the property that many generations down the road. Most states have enacted a version of it for property transactions and wills/trusts. It goes like this: “No interest is good unless it must vest, if at all, no later than 21 years after some life in existence at the creation of the interest.”

    In other words, if X is the last grandkid born during the grandfather’s life, the will may not control the property for more than 21 years after X’s death. (roughly)

  • Stephen P

    My first reaction was to agree with the court and with the first few commentators. But on thinking further, I have partly changed my mind.

    Yes, it is the testator’s money and it is his decision where it should go. But I think that if he wants to cut out one of his five grandchildren he should have to change his will to say explicitly that the money is to go to A, B, D and E. And if B then does something he disagrees with, he should have to change his will again to leave the money to A, D and E. In other words he can be a jerk, but he has to do some work if he wants to be a jerk. He shouldn’t be allowed to leave a paper booby-trap lying around.

    The only conditional clauses allowed should be to cover the situation if a person dies or an organisation ceases to exist.

  • Jerad

    While I agree with his right to be a jerk in his inheritance, also who is he to force the court to determine a person’s religion? I think the best option for the woman (if married) would be to say here’s my husband, a non practicing jew.

  • AxeGrrl

    Delphine wrote:

    I’m always slightly disgusted at people who consider inheritance their “right”. This sense of entitlement is totally beyond me.

    This.

    Where the hell do people get the nerve to try to contest the will (literally and figuratively) of a relative? Gramma has every right to leave her entire fortune to her cats if she wants to.

    Where does this sense of ‘entitlement’ come from anyway?

  • Finn

    On “proof”: In other similar cases (believe me, there have been a lot), it was often specified that the spouse had to have Jewish parents in order to be considered Jewish for the purposes of the will.

    I’m a little surprised by all the kneejerk reactions calling the grandfather a bigot. In a lot of ways Jewishness is more an ethnic and cultural identity than a religion, and there’s a real sense of being an “endangered species,” if you will. In one famous case, the father specified that his sons had to marry a Jewish woman by a certain age in order to get the inheritance (his only daughter was already married and living in Israel at the time), and if they didn’t, the money went to the state of Israel. The court basically pointed out that he was obviously trying to use his money to maintain the Jewish state, whether through his own offspring or not.

    I think this is probably more about maintaining your “heritage” through the family line than religion, especially given that we’re talking Judaism here and not, say, some branch of fundamentalist Christianity.

  • TXatheist

    Judaism is on it’s way out, thank Darwin.

  • Steven

    I suspect that this sort of thing is not that uncommon. It seems that while a parent’s or grandparent’s love might be unconditional if you want their cash you better not “disappoint” them. Fortunately for me, my parents have always had more love than cash and I won’t be inheriting (in the distant future – please.) much more than good memories. My mother-in-law on the other hand is reasonably well-off and regularly threatens to “spend it all” or “just leave it to the grandchildren” whenever we piss her off. Being a gentleman, I have resisted the temptation to tell her to stuff it up her withered backside.

  • Frank

    In regard to Finns comments, it always amazes me how people are willing to let jews get away with things they don’t let any other group get away with. How on earth is the ethnicity/culture/heritage talk supposed to make the grandfathers actions any better? If this was any other minority, we would all automatically recognize that that made it worse. If a black grandfather put a clause in his will saying that his grandchildren wouldn’t inherit anything if they married a white person, we would all recognize that as bigotry instantly. Doesn’t seeing judaism as an ethnicity put this grandfathers action even firmer in the same category as my hypothetical black grandfathers action?

  • stogoe

    @DSimon… I think I baited an Ayn Rand worshiper.

    Bad jemand! Bad! No!

    I don’t have any knowledge about the legality of grandpa bigot’s booby-trapped will. But I do know that’s it’s a dick move either way.

  • Stephen P

    Finn:

    I’m a little surprised by all the kneejerk reactions calling the grandfather a bigot.

    Firstly: how do you know they were kneejerk reactions? How do you know how long each poster thought before posting?

    More importantly: this person is threatening to deprive his grandchildren of a substantial sum of money; this is based not in any way on how good they are as people, or on how good their spouses are as people, but on the ethnic/religious group their spouse happened to be born into. If this is not bigotry, then what on earth do you think the word ‘bigot’ means?