The Jewish Clause
“A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.”
The wording above has created a bit of controversy in Illinois. Max Feinberg, who died in 1986, stipulated in his will that any of his grandchildren who married outside of Judaism would be considered dead for the purposes of his will. The Illinois Supreme Court may now get involved after an state appeals court (read the full ruling here in PDF) ruled that the above clause is invalid. The appeals court cited previous Illinois case law which invalidates any provision that “acts as a restraint upon marriage or … encourages divorce.” The wording is from an 1898 Illinois Supreme Court case, and the majority decision in that case cited other cases in which an Illinois court invalidated a provision in a will that had to do with the heir’s marriage.
At first blush, this decision seems to fly in the face of the idea that a person can dispose of his or her money as he or she see fit. One of the deciding judges admitted that she saw honoring the will as a way that would “open a door toward bigotry”. I hate to say it, but that door has been pretty wide open for a long time, even in the cases of wills, though it’s just usually not stated in this manner. How many LGBT people have been disowned? Or people who married outside their race? Or even married a Jewish partner? Are these wills illegal and should they be?
Does the State’s desire to protect marriage outweigh a person’s write to plan their estate as they choose? Does preventing bigotry outweigh the individuals right to bestow money as they choose at the time of their death? This case really highlights these difficult issues. This is an important question for Humanists to consider. Is freedom from bigotry more important than individual rights? Or is the case of a will somehow different from the everyday freedoms we hope to enjoy?
Contesting the will on this basis sounds like nonsense. If Max Feinberg knew this could happen, he probably would have given away his possessions before he died. In that case, he could have given it to anyone he wanted and no one would have questioned him. Why should that change because he died? Yes, people should be able to distribute their own money any way they see fit, whether alive or dead.
Any attempt by government to regulate how a person disposes of his or her estate would be an egregious violation of individual rights. It seems to me that this issue is only being brought up because the disinherited is a sympathetic character. The idea that an individual would suffer a punishment or sanctions for marrying someone he or she loves because of religious bigatry is offensive to humanists.
Suppose the deceased was a woman who came out as a lesbian late in life and after having three children. Now two of her children accepted her homosexuality but her oldest son did not. His religious views taught him to abhor homosexuality and he expressed those views to his mother. If she wrote him out of her will I doubt the issue would have been raised.
Sorry to say it but people do have a right to behave in a bigoted manner. That is the price of liberty.
I’m going way out on a limb here but I don’t see any inherent human right in disposing of property after death, period. The State may grant a person certain privileges as to distribution to encourage particular behaviors in people who are alive (incentive for the bequeathing generation to work hard, for example; but that is offset by the removal of incentive for the receiving generation to work as hard). It may or may not be good public policy to encourage those behaviors, but in my opinion the moment that the act of control by a dead hand is against public policy is the moment it is time to remove the dead hand.
MKB-
First of all a person does not distribute his or her property when he or she is dead. A person writes a will while he or she is living often many years before he or she dies. The will goes into effect once the person is dead but the distribution was decided upon before death.
You must not believe in the concept of private property. Otherwise you would acknowledge that a person has the right to do with his or her property as he or she sees fit. A belief that there is no inherent human right to do this contradicts a basic principle in individual porperty ownership.
You’re right. I don’t believe in private property as a human right. I believe in it as a useful economic system that can and should be modified to the extent that such modifications make the system more humane.
Ok but I do not see how having the government intercede in this issue would achieve that.
Suppose a decedant puts a provision in his will that as long as his daughter is married to her balck husband she can’t inherit anything? How could you prove that the man’s objection was because the husband was black? Perhaps the objection would be to how he treated his daughter, or that he is chronically unemployed, or that he enables drug use of the decedant’s daughter. You can’t and that’s the problem. I also suspect plenty of people have been written out of wills because of who he or she married. It happened to my half-brother when his grandmother died ten years ago. His grandmother was a southern woman and did not like that my brother married a “yankee” from Wisconsin.
And here is another one: What if this man gave his money to a scholarship only for people who ere Jewish? Wouldn’t this be the same thing? Showing preference to the Jewish faith over other religions. Of course it would and when you outlaw this then there go ALL scholarships that use race as a criteria and gender will soon follow.
Keep it the way it is. That is the most humane way.
I think that balance between property rights or private property vs a humane system is at the crux of this issue. Certainly if the gentleman in question had left his million or so dollars to any Jewish (or Other) charity or church, their would be no story. Even if his grandchildren contested the will. Unless he was unfit to make the will in some way, they wouldn’t have a case.
The courts may be fussing about not creating a situation “that acts as a restraint upon marriage or
I think you are on the right track Lisa. But we need to resist the tem,ptation to involve the government. It will only make things worse.
For those that don’t believe that a person has a right to own property (including the right to control and dispose of it), I would like to refer you to the 14th Amendment of the Constitution of the United States: “nor shall any State deprive any person of . . . property, without due process of law.” Nor can government take such property for a public purpose without giving the owner just compensation. Regardless of one’s personal view, in the U.S. there is a “right” to own property, control and dispose of property.
Why should our courts (essentially our government) be forced to enforce on a child, or otherwise, family values that the decedent obviously was unable to accomplish in their lifetime. There are much better ways to parent than by a will.
Because it is the decedent’s property to dispose of as he or she wishes. The government is obligated to enforce the decedents’s will. Otherwise wills will be meaningless.