In Matter of Feinberg, an Illinois appellate court recently addressed the enforceability of a will clause that provided that the testator’s descendants could only inherit from his estate if they married within the Jewish faith (or their spouses converted to Judaism within one year of the marriage) (383 Ill App3d 992, 992 [Ill App Ct 2008], app. all’d, 229 Ill2d 667 [Ill Sup Ct 2008]). The court found that it was not enforceable in that it violated public policy (id.). In doing so, the court analogized the Feinberg clause to will provisions that imposed similar faith-based marriage requirements on beneficiaries, and concluded that the clause impermissibly restrained marriage and encouraged divorce (id. at 994-95). 

Would such a clause likely be enforceable in New York? The answer may be “yes.” Although no New York court has addressed the issue recently, several older decisions opine that such a clause is enforceable. Those decisions are, of course, subject to the general rule that the clause not encourage divorce or discourage marriage (cf. Robinson v Martin, 200 NY 159, 167 [1910] [discussing a bequest as a restraint on marriage]). 

Matter of Silverstein’s Will is illustrative (155 NYS2d 598 [Sur Ct Queens County 1956]). There, the testator’s will provided for the equal distribution of his personal property to his grandchildren, but only if they married Jewish spouses (id. at 599-600). The Surrogate’s Court held the clause to be enforceable, explaining that conditions “not to marry a person of a particular faith . . . are not [per se] invalid” (id.). As a result, the court also concluded that one of the testator’s grandchildren was not entitled to a share of the testator’s personal property, since he married outside of the Jewish faith (id.).

The Appellate Division, Fourth Department, reached a similar conclusion in Matter of Kempf’s Will (252 AD 28, 29-34 [4th Dept 1937]). In that case, the testator’s will bequeathed $5,000 to his grandchildren, provided that they were raised as Roman Catholics (id.). Although the Surrogate’s Court, Oneida County, concluded that the subject provision violated public policy, the Appellate Division reversed, noting that “the testator had the right to burden his gift with conditions” (id.). Accordingly, the Appellate Division explained that the grandchild who was not raised a Roman Catholic did not have a right to the $5,000 bequest (id.).

Times have changed since the Silverstein and Kempf decisions were rendered. Could a New York court find that such a will provision violates public policy and refuse to enforce it? Possibly. Despite the authority to the contrary, would a New York court conclude that such a clause is an unreasonable restraint on marriage (Feinberg, 383 Ill App3d at 997)? Perhaps. Might a court analogize such a clause to restrictive covenants concerning religion and real property, which have been held to violate the Federal Constitution and public policy alike (5 Rathkopf’s The Law of Zoning & Planning § 82:8 [4th ed. 2009])? Maybe. It would be interesting to see whether a New York court concludes that such a will provision is enforceable in the twenty-first century.