It's The Law: Where there’s a will ... Last testament can impose marriage restrictionscan

Q: My father has a clause in his will that I only get something if I am married to a person of a particular religious faith. Is that legal?

A: The right of a person to include restrictions on a gift in his or her will has long been recognized in Florida. That right is similarly recognized throughout the country, although it can be limited where the restriction is against public policy.

In determining public policy, courts claim to be applying policy known but not created by the court. That may well be a legal fiction, as the court is also determining what the policy is.

In some cases, a conflict can develop involving different public policies. For example, it is the public policy in Florida that a person may attach restrictions to a gift in a will. It also appears to be public policy to prohibit restrictions which encourage or create the criminal activity. It is unlikely a gift would be upheld contingent on the beneficiary killing the testator’s widow.

Religious restrictions have received generally favorable treatment. The most recent and widely publicized case was a 2009 decision of the Illinois Supreme Court, In re Estate of Max Feinberg. Max set up trusts for his grandchildren which provided that any descendent who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one (1) year would be disinherited. One of the grandchildren challenged that restriction, arguing it was void against the public policy of Illinois. The lower court agreed, ruling that the clause was violative of Illinois public policy because it interfered with the right of individuals to marry. The case was appealed to the Illinois Supreme Court.

The Illinois Supreme Court focused on a different issue. The trial court apparently overlooked the fact that the will gave Max’s widow the power to direct distribution from Max’s estate. She used that power to make outright gifts, which basically unfunded the trusts and made the restriction irrelevant. Yet, there was still an issue. The issue decided by the Illinois Supreme Court was whether a widow’s exercise of her power to direct distribution in a manner that violated Max’s plan was allowed.

The court noted two public policy interests: Right of freedom in directing distribution of property in a will and the right to marry without restriction. The court focused on the fact that the grandchildren had no right to inherit at all upon Max’s death, if Max chose otherwise. Under Illinois law, even if Max did not have a will, Max’s children, not grandchildren, would have inherited. The court upheld the widow’s exercise of her right to direct distribution.

Florida courts have long noted that restraints on marriage are viewed with disfavor. In 1879, Florida’s Supreme Court was asked to throw out a trust that provided for a beneficiary as long as she lived with her sister. The court explained that public policy against restraints on marriage are not favored, but that it would not interpret the trust to be a restrain on marriage because the beneficiary was free to marry and still live with her sister. A husband’s will directing distribution to his wife but only for so long as the wife remained unmarried was upheld in 1952.

The Florida case closest to Illinois is the 1968 appellate court decision involving the estate of Albert Rapaport. Mr. Rapaport’s will included gifts to beneficiaries with a provision that if any beneficiary died before Mr. Rapaport or married a non-Jew, his share would lapse. Mr. Rapaport’s son married a non-Jew after Mr. Rapaport’s death.

The trial court ruled that the son’s marriage to a non-Jew deprived him of his father’s request. The appellate court reversed by concluding the limitation was to be applied at time of Mr. Rapaports death. It explained that if Mr. Rapaport had intended the restriction to apply to any marriage prior to distribution, Mr. Rapaport should have stated that clearly in the will. Because the provision dealing with termination of a bequest coupled death before Mr. Rapaport or disqualifying marriage, the court decided the disqualification was to be determined at the time of Mr. Rapaport’s death. Interestingly, it was not until 14 years after Mr. Rapaport died and approximately 8 years after his son married that the executors raised the issue.

Based on the Florida case law, with a nod toward Illinois, it would appear that a restriction in a will limiting bequests to those married to a person of a particular faith would be enforceable in Florida. However, the exact language and circumstances may impact the outcome. You should meet with an experienced attorney to discuss the specific facts and circumstances of your situation.

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722.

© 2011 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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