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“If you Will it, it is no Dream?”

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06/11/2009

Max Feinberg died in 1986. His wife, Erla, died in 2003. Max, whose family came to America to escape anti-Semitism in Russia, was a dentist. Sound familiar? At a glance, they could be anyone’s Jewish grandparents. Before they died, Max and Erla devised trusts which they would use to dictate the proceeds of their respective estates concurrent with their wishes. Max’s estate contained an interesting provision which is now known as the “Jewish Clause.” Here it is, quoted it in its entirety:

“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 [emphasis added] for all purposes of this instrument as of the date of such marriage.”

So, when Max and Erla had five grandchildren, and only one of them married a Jew, the four would-be beneficiaries of Max’s estate sued for their inheritances after Erla died. (Read a Tribune story from last year for all the sordid details) The trial court found for Max’s grandchildren, and the court of appeals upheld the trial court’s ruling in a 2-1 vote. According to the Court, public policy encourages marriage, and the Jewish Clause “tends seriously to interfere with or inhibit the exercise of a beneficiary’s freedom to obtain a divorce or the exercise of freedom to marry by limiting the beneficiary’s selection of a spouse.”

While Illinois law favors Max’s grandchildren, the lone dissenting Justice of the appeals court said that most states have upheld provisions like the “Jewish Clause” in Max’s trust. “[A] testator [Max, in this case] has the right to make the enjoyment of his bounty dependent on the condition that the recipient renounce, embrace, or adhere to a particular religious faith.” A New York court held that our Constitutional right to freedom of religion is intended to protect us from government intrusion on religion, and not to limit the right of a man like Max to  pass on his property as he pleases.

The Illinois Supreme Court will soon hear the Feinberg case.

Even without all the legal details and the specific effects of Max’s Jewish Clause, the case raises some interesting questions:

Should someone be allowed to restrict who gets his or her assets upon death based upon who they marry? If Max is allowed to “stiff” his grandkids for marrying non-Jews, should someone also be allowed to stiff his or her descendants for marrying someone who is black or a member of any other group that he or she doesn’t like? Most of us want to say no. But I can relate to Max, or at least understand where he is coming from. His family came to this country to ensure their own survival and to escape anti-Semitism. After working and saving his money, Max sought to provide a tangible incentive to his grandchildren to carry on Jewish traditions. That being said, Max’s Jewish Clause seems kind of harsh to me. Encouraging in-marriage is one thing, but deeming your grandkids legally dead (for the purposes of inheritance) when they marry non-Jews is another.

What do you think?

Read the official opinion of the appellate court here.

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