Litigation in the Estate of Max Feinberg has sparked online discussions both before and after the case was decided by Illinois Supreme Court. The question involves the validity of a clause in a will or trust that effectively disinherits a descendant who marries outside of a given faith. Since Max Feinberg and his wife, Erla Feinberg, were Jewish, the clause has been called the “Jewish clause,” although the Illinois Supreme Court’s “beneficiary restriction clause” is more accurate, since this is not a uniquely Jewish issue.
Surprisingly, there have been very few recent decisions from any court on the legal effectiveness of the clause, which explains the widespread attention to the outcome of this particular case.
Two lower courts held that the clause violated state public policy, which encourages marriage and discourages divorce. The Illinois Supreme Court took a more nuanced approach and upheld the validity of the clause under the narrow facts presented. The Court explained that in this case the distribution scheme could have been altered by will or powers of appointment during Max and Erla Feinberg’s lifetimes. Since no interests were vested until Erla Feinberg’s death, at which point the property was distributed outright, the estate plans never acted as a restraint on marriage or as an incentive for divorce. The Court may very well have come out the other way and invalidated the clause had the beneficiaries been given a remainder interest in a trust on condition that they marry Jewish spouses.
The case deals with the so-called Jewish clause from a legal perspective. But how Jewish is the Jewish clause?
As Rabbi Ari Marburger points out in the introductory webcast to Bais Havaad’s Halachic Wills & Estates Series, halacha draws a distinction between the validity and the appropriateness of an estate plan that varies the halachically prescribed order of distribution. Just because the estate plan can be made to be halachically binding does not mean it bears halachic approval. In fact, whether it is ever appropriate to vary the halachic order of distribution has historically been a matter of halachic dispute. The disinheritance of a halachic heir is more problematic, but what constitutes a disinheritance is far from clear.
In the Feinberg case, the clause operated to disinherit four grandchildren. Since grandchildren are not halachic heirs while their parents are alive, the clause disinheriting them is inconsequential from a halachic perspective. Rabbi Marburger suggests that even if the clause had been directed at the halachic heirs, contemporary authorities would allow the disinheritance. Even so, while the clause may be valid, I am not aware of any contemporary traditional halachic authority that actually advises disinheritance for any reason.
While halachic estate planning often focuses on the mechanics and halachic validity of an estate plan, the larger question of halachic appropriateness should not be ignored. This is particularly true in the common situation of a married couple leaving their entire residuary estates to each other. In most cases, that distribution scheme is halachically problematic, whether or not the will is accompanied by a binding halachic note of indebtedness.
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And thanks to Avrohom Gefen , a litigation associate at VMM, for reading the post over several times and saving it from utter incomprehensibility.
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