'Jews Only' Inheritance Plan Allowed By Illinois Supreme Court
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SPRINGFIELD, Ill. — Proud of his religion and worried about its future, Chicago dentist Max Feinberg wrote a will with an unusual catch: His grandchildren wouldn't inherit a penny if they married someone who wasn't Jewish.
His decision led to family feuds, lawsuits, counterclaims and, on Thursday, a unanimous ruling by the Illinois Supreme Court that Feinberg and his wife were within their rights to disinherit any grandchildren who married outside the faith.
"Equal protection does not require that all children be treated equally ... 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," Justice Rita Garman wrote in a ruling that overturned decisions by two lower courts.
One disinherited granddaughter had argued it was improper for a will to set up conditions that promote religious intolerance in people's marriage decisions or even encouraged couples to divorce.
"It is at war with society's interest in eliminating bigotry and prejudice, and conflicts with modern moral standards of religious tolerance," said Michele Feinberg Trull's brief to the Supreme Court.
The court's ruling was based partly on technicalities in the way this estate was arranged. The court did not provide a broad ruling on whether similar religious restrictions would be valid under other circumstances.
The dispute has its roots in 1986, when Feinberg died.
He put his money into trusts for his family, but his will declared that any grandchild marrying someone who wasn't Jewish, or who didn't convert to Judaism, "shall be deemed to be deceased" and would inherit nothing.
Feinberg's will gave control of the trusts to his wife, Erla. When she died and the grandchildren were to inherit $250,000 each, she followed her husband's wishes and imposed the same restrictions.
By that time, four of the five grandchildren had married gentiles.
Erla Feinberg's death triggered a series of disputes. Trull accused her father and aunt, the Feinbergs' children, of mishandling the family money. In return, they tried to get the lawsuit dismissed on the grounds that the daughter was "dead" for purposes of inheritance and had no standing to sue.
So the courts had to decide whether it's acceptable for a will to base inheritance on someone's marriage and religion.
Feinberg's son, Michael, argues there's nothing wrong with it.
Michael, who stands to inherit more money if his children are cut out, argued in court documents that the will simply rewards the grandchildren who help preserve the "heritage and faith" his father loved.
His position won the support of several Jewish organizations, including Agudath Israel of America, a national Orthodox group.
David Zwiebel, executive vice president of Agudath Israel, said he didn't know of any other court rulings that directly address whether a will can tie inheritance to religious choices. Such restrictions aren't unusual, he said, because some people want to discourage intermarriage that is contributing to the declining number of Jews in America.
"There is a strong sense within certain segments of the Jewish community that in order to preserve the religious identity, it's important to promote marriage within the faith," Zwiebel said.
Michael Feinberg, who is the co-executor of his parent's estate, was pleased by the ruling but had no other comment, his attorney said. Trull's attorney said she was disappointed but looking forward to court action on her other legal claims.
The two sides of the family can't even agree on what to call the part of the will causing all the trouble. The granddaughter calls it "the Jewish clause." Her parents have adopted the phrase "religious preference clause."
The state Supreme Court based much of its decision on the fact that Erla Feinberg's will awarded set amounts of money based on the marriage status of the grandchildren at the time of her 2003 death – either they qualified for the money or they didn't. The court said that meant the will didn't try to control what the grandchildren would do in the future and didn't offer any incentive for a particular couple to divorce.
A will that provided money year after year if the heir did not marry a gentile might not pass muster, the court suggested. That's because it would amount to a dead man trying to control actions for years to come and would encourage divorces so that people could claim an inheritance.
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The case is In re Estate of Feinberg.
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On the Net: http://www.state.il.us/court/Opinions/recent_supreme.asp
(This version CORRECTS UPDATES with comment from Orthodox group, more detail on court's reasoning, will allowing spouse to convert. corrects that granddaughter is suing father and aunt, instead of father and mother.)
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CHRISTOPHER WILLS 09/24/09 06:29 PM ET Associated Press