It remains a highly controversial topic whether a court should enforce a testator's religious restrictions in an estate plan. The following is a brief overview of the pitfalls of making such restrictions.
"Testamentary freedom" is a terms lawyers use to describe a person's freedom to dispose of his or her own property at death. While American law generally supports the idea of testamentary freedom, this power is not limitless. Let's review an issue the Illinois Supreme Court wrestled with in 2009: Will provisions that disinherit family members that marry outside the faith.
One Family's Protracted Legal Battle
In the case of In re Estate of Max Feinberg, the court dealt with a will clause that sought to disinherit any descendant that married outside the Jewish faith. A provision of this nature pits testamentary freedom against other rights, such as religious freedom and freedom to marry. Ultimately, the Feinberg court did not invalidate the religious restriction (overturning a lower court decision), finding that testamentary freedom prevailed. But it limited its finding essentially to the facts of this case. In non-legalese, this means the court ruled a certain way in this specific case, but was careful to avoid making broad pronouncements about the state of the law regarding religious restrictions in general. However, I would not read too much into this one result.
According to an American College of Trust and Estate Counsel article (cited below), the Feinberg litigation was so expensive for the family, that there was no longer enough money left in the estate for the religious restriction clause to even matter. Tread carefully when putting any type of restriction in your estate plan that comes close to violating public policy, or your estate may also end up in unproductive litigation.
The citations and statements provided are broad and informational in nature, intended for the general public, and are not legal advice. They are not tailored to any individual situation and no attorney-client relationship exists or has been formed herein. You are advised that you must consult with your own attorney for any legal advice.
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