Bring Home A Nice Jewish Boy . . . or Else: Illinois Supreme Court Upholds “Jewish Clause”

180px-Chupah_closeupThe Illinois Supreme Court has upheld the so-called “Jewish Clause” in a will of a deceased Chicago dentist who wanted to disinherit any children or grandchildren who failed to marry a Jew. Max Feinberg’s will will result in four grandchildren being disinherited.

Feinberg allowed grandchild to marry a non-Jew so long as the person converted within a year. His wife Erla could have gotten around the restriction but decided to enforce it against the grandchildren.

To make matters worse for the family, two of the grandchildren accused the Feinbergs’ daughter, Leila Taylor, of misusing $1.6 million in funds for her own benefit. Taylor then sought to dismiss the complaint by noting that the grandchildren had no standing because they married non-Jews.

The Illinois Supreme Court ruled “[b]ecause 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.”

I agree with the decision, even though I find the views of Feinberg and his wife to be offensive and filled with prejudice. While I grew up in a devout Catholic family, I (and one of my brothers) married Jewish women and there was never anything but joy that we found the “right girl.” Our parents were more concerned about our happiness and felt that God would want the same thing.

The family insists (here) that the objection to the will is simply a case of “political correctness.” I would call it something a bit more than that. Most parents and grandparents are more concerned about their children finding someone who they love and allowing them to find their own path to a fulfilling faith. However, these parents have a right to impose their own idiosyncratic demands on their children, so long as it complies with the criminal law and such property doctrines as the Rules Against Perpetuities. It was Max’s money and he should be allowed to control its distribution.

Max Feinberg, therefore, succeeds on a posthumous basis to show that he had every right to be prejudicial and cruel to his descendants.

For the full story, click here.

57 thoughts on “Bring Home A Nice Jewish Boy . . . or Else: Illinois Supreme Court Upholds “Jewish Clause””

  1. Perhaps the State should just raise the inheritance tax to 100% to protect all inheritors from any economic injustice.

  2. And all heirs still have their Constitutional rights. Is there a better reason to abrogate the will of the testator than to protect the Constitutional rights of the descendants? If a black man said in his will that to take his descendants would have to revert to a period of slavery to pay off a debt, would you find that permissible?

  3. Bob,

    There is in Louisiana. They have forced heirs, a leftover from the Napoleonic codes.

  4. Buddha:
    “Aye, Bob. It’s an enforcement issue. Being a bigot is their choice. Using the mechanism of state to enforce is, at best, excessive entanglement.”

    Absent spousal election or an intestate proceeding there is no ‘right to inherit’ anything in the presence of a valid will to the contrary.

  5. AY,

    There may be some weird rules in the hill-billy states, but in New York, the ONLY people who can alter the bequests of a testator are the spouse (under the spousal election rule) and an heir with standing to contest the entire will.

    If a testator, as a general rule, being of sound mind and body, under no duress, and fulfilling all the other elements of executing a valid will, may cut off his entire family, save his current spouse, and do whatever he wants with his estate.

    This case represents nothing more than a condition precedent on a bequest; the condition not being met resulting in denial of the bequest and omission from any portion of the estate–most likely coupled with a no-contest clause. That is not illegal for obvious reasons stated by the court above.

  6. What about a person that comes from a wealthy Jewish family and a member of the family converts to Catholicism. They then are cut off so to speak. Are you saying that this would be voidable enforcement and against public policy in Texas? Try and get a court to hear it is what I can say. The last contestation that I am aware of took place from June 1976 to January 1990.

  7. Mespo: “I have serious problems with the State enforcing their malevolence.”

    Once again, in a probate setting, the State, i.e. the ‘laughing heirs’ of the Estate, have NO STANDING to intervene to void a bequest. The ONLY way the State might have any say would be to void any illegal bequest; e.g. a meth lab or a deed to land subject to a covenant and restriction against (name the violation of the 14th Amendment) RUNNING WITH THE LAND.

  8. I agree with Mespo that the rational used by the decedent and accepted by the Illinois Supreme Court is the same as those used in race based restrictive covenants in deeds. For years after it was illegal in Illinois to enforce such onerous deeds, the restrictive covenants were still showing up on Torrens Certificates in Cook County and on Title searches throughout the suburban Chicago area. The use of the state to enforce this discrimination is detrimental to society as a whole and in this case, detrimental to family relations. This family will never be the same because the testator wanted to discriminate against non-Jews.

  9. And we restrict testator’s intent all the time. Codicils or restrictions that are manifestly illegal, like requiring a revenge killing to take, can be and are routinely quashed by probate courts all the time while retaining the residual intent of the testator. That a restriction has a Constitutional basis for claim should be no different than if the restriction has any other valid rationale to be voided for “public policy” reasons (e.g. the stated murder example).

  10. Aye, Bob. It’s an enforcement issue. Being a bigot is their choice. Using the mechanism of state to enforce is, at best, excessive entanglement.

  11. Bob,Esq:

    I have no problem with the discriminatory nature of the bequest; people are free to be fools or bigots (and to suffer the consequences flowing therefrom). I have serious problems with the State enforcing their malevolence. Had no objection been raised to it by the beneficiaries, I would not advocate the state rushing in to void it. I object to using the power of the state to effect the purposes of a cold, dead, discriminatory, hand.

  12. nal:

    The state protects the rights of bigots — sometimes. They may not be restricted in their speech if they pose no threat to public order (say, yelling racial epithets in volatile situation) and may not slander or libel. No one’s rights are absolute, and I choose to stand with Justice Vinson and draw the line here. It is not an “either-or” choice.

  13. Mespo,

    This has NOTHING to do with deeds and race based covenants or anything else that affects society. This is a Last Will and Testament.

    There is nothing more bizarre about the conditional bequest here than specifically disinheriting children for no reason at all and adding a no-contest clause.

    If the testator wanted to add a conditional predicate as to why he was disinheriting certain children, e.g. disinherit all his children who married outside the race, then, simply put, all the ‘laughing heirs’ in society have no standing whatsoever to say anything about the matter.

  14. Let him be a bigot without state intervention or state protection.

    The state protects the rights of bigots to speak and think as bigot, effectively protecting a bigot’s right to be a bigot. This will is like a contract, with a dead person. If the grandchildren want the money then they should abide by the (legal) terms of the contract.

  15. I’m in the mespo camp on this one. It’s analogous to an unconstitutionally restrictive covenant that serves no valid purpose but religious discrimination. I think it’s a question ripe for Art. III review. If the restriction had been more broad, say that the descendant must be married to take, I’d have no issue. But to make one give up the freedom to choose their own mate based upon solely religious grounds is counter to the Right of Free Exercise. I won’t even go into how against the spirit of the DOI this is. It’s a terrible precedent. In addition, by permitting religious based discrimination in the devolution of property you are creating an environment ripe for Lemon challenges. The descendant has rights too and while alienation of some rights as a condition of taking are fine, one that could be characterized as prima facie in violation of the 1st Amendment is not.

    How is it fair to let the blind blatant prejudices of the dead dictate the religious and spiritual lives of the living let alone their marital lives?

    Simply, it’s not fair. The world belongs to the living.

  16. Mespo,

    With that rational that you are using please help me get what I am entitled to then. My family uses the discretionary trust rational with an antiterrom clause.

  17. AY/JT:

    “This was this man’s money and if you want to be paid to sing the song, then you must note the score and play along with the way that the band.”


    That was the exact rational used to enforce race based restrictive covenants in deeds. We had the good sense to prevent our judicial system from being a co-conspirator in race-based discrimination in Shelley v. Kraemer (1948). Justice Vinson wrote: “[A]ction of State courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment.” Maybe the Canadians will catch on when it comes to irrational religious based discrimination.

    I am also surprised to learn that JT agrees with this indecent proposal. It may be the decedent’s money, but I find official sanction of his religious stupidity offensive and unlawful. Let him be a bigot without state intervention or state protection.

  18. I do not think that this is such a bad precedent. This was this man’s money and if you want to be paid to sing the song, then you must note the score and play along with the way that the band. If you don’t know the music you music still learn to dance to the tune. In this case it is worth noting that the granddaughter is accused of spending 1.6 million and then the clause was enforced against her for not marrying a Jew or the spouse converting within one year. It appears that she directed the band and did so poorly.

    More power to Max.

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