Wednesday, November 12, 2014

Controversial Estate Plans: Can you Legally Encourage Divorce? Disinherit a Spouse? Make Religious Restrictions?

"Testamentary freedom" is a terms lawyers use to describe a person's freedom to dispose of his or her own property at death.  While American law generally supports the idea of testamentary freedom, this power is not limitless.  In this article, I will discuss controversial estate planning provisions, such as provisions that disinherit spouses, encourage divorce, or make religious restrictions.

A prime example of the limits on testamentary freedom arises in situations where one spouse disinherits the other spouse in a will.  In a world of unlimited testamentary freedom, a wealthy businessperson could disinherit his or her spouse and leave that person destitute and on public assistance for the rest of his or her life.  To avoid this, states have created spousal elective share laws, giving the surviving spouse the right to a set percentage of the estate, no matter what the estate plan says.  For obvious reasons, state legislatures have reasoned that "public policy" favors ensuring that surviving spouses (who are often elderly) are provided for.

Most people do not take issue with spousal elective share laws.  However, let's discuss some more controversial will provisions.  Imagine that you really dislike your son-in-law, and want to encourage your daughter to divorce him.  You may have excellent reasons.  However, is it advisable to put a provision in your will or trust stating that your daughter will be disinherited if she does not divorce him within a certain amount of time after your death?

Don't count on a will provision that actively encourages divorce being upheld in court -- many states consider anti-marriage provisions to be highly suspect, or automatically void against public policy.  In Illinois, there has historically been a distinction between conditioning an inheritance on the completion of a divorce that is already in progress (possibly legal), and requiring a potential beneficiary to begin divorce proceedings that were not already happening (void against public policy).   However, a provision that in any way encourages divorce is likely to spark expensive probate litigation after your death, and the state of the law in the future is never guaranteed.

Finally, let's turn to an issue the Illinois Supreme Court wrestled with in 2009:  Will provisions that disinherit family members that marry outside the faith.  In the case of In re Estate of Max Feinberg, the court dealt with a will clause that sought to disinherit any descendant that married outside the Jewish faith.  A provision of this nature pits testamentary freedom against other rights, such as religious freedom and freedom to marry.

Ultimately, the Feinberg court did not invalidate the religious restriction (overturning a lower court decision), finding that testamentary freedom prevailed.  But it limited its finding essentially to the facts of this case.  In non-legalese, this means the court ruled a certain way in this specific case, but was careful to avoid making broad pronouncements about the state of the law regarding religious restrictions in general.  I would not read too much into this one result.

As this article from the American College of Trust and Estate Counsel notes, the Feinberg litigation was so expensive for the family, that there was no longer enough money left in the estate for the religious restriction clause to even matter.  Tread carefully when putting any type of restriction in your estate plan that comes close to violating public policy, or your estate may also end up in unproductive litigation.

Published by Ian Holzhauer, Esq. of Nagle Obarski PC in Naperville, IL.   

Note:  The information above is not legal advice and is not the basis of an attorney-client relationship.  If you need assistance, you can hire an attorney to assist you with your individual legal needs. 


  1. If you are a student then assignment tasks are also given to you because these are considered as the main tools for judging student’s knowledge all around the world. Students do not understand the real meaning of these types of assignments and only consider them a means of achieving good grades but in reality this is an awfully daunting work. Further, it is also essential to follow the demands of your teachers which make this work more difficult. The worst of all, fast approaching deadlines makes you feeling nuts and in the end all you can get is a low performance certificate from the teachers. The good thing is we are just a click away from you and you can bring an end to your problems by hiring Essay Writer us now!

  2. I know this is often really boring and you're skipping to ensuing comment, however I simply wished to throw you a big thanks you cleared up some things for me! Cheap Commercial auto insurance in Houston

  3. each gathering can procure a community divorce legal advisor and work with each other and the legal counselors with the objective of settling issues and staying away from court. KidsAfterSeparation

  4. What a neat and precise article. The use of words is commendable.

  5. Indeed, you could do that yet what you have to acknowledge is that unless your companion is an authorized lawyer, he/she isn't approved to specialize in legal matters.Lydia moritz

  6. This is what we call soothing and The blog is like a portal of feelings.
    affordable divorce lawyers

  7. Do you write more? It merely required a few moments to see your entry and so have an awareness that I know most people miss out on. Getting more people to join the discussion is usually a great thing.

  8. Perfect work you have done, this site is really cool with good information. GPW Law

  9. It requires a shared duty from both the customer and the lawyer. In the event that the customer isn't coordinating completely, the lawyer couldn't give the best of his/her administration.

  10. You will know precisely what to tell your lawyer, what to ask them, the amount to pay, and the various related subtleties. best car accident lawyer near me