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Illinois High Court Upholds Bequest To Grandson Who Married Within the Faith

By Howard M. Friedman

In In re Estate of Max Feinberg, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court, by narrowly defining the issue before it, upheld the result desired by Max Feinberg who wanted to leave his estate only to those of his grandchildren who married within the Jewish faith. Four of his five grandchildren married non-Jews, and one of them contested the testamentary provisions that disinherited her. The state Court of Appeals upheld her challenge on public policy grounds. (See prior posting.)

The Supreme Court, however, focused on the fact that Feinberg's wife exercised a power of appointment she had been given under the terms of her husband's testamentary trust. She had directed that upon her death her two children and the grandson who had then married within the faith receive the assets that were currently in trusts. This eliminated many of the hypothetical concerns that had influenced the Court of Appeals' decision and eliminated any influence on future marital decisions of potential beneficiaries. No "dead hand" controlled the future conduct of beneficiaries because the wife locked in the identity of the beneficiaries by making a bequest "to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished."

The Supreme Court also rejected constitutional claims, saying:

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.

AP reports on the decision and gives additional background.

Full post as published by Religion Clause on September 25, 2009 (boomark / email).