The Estate Analyst: Testamentary Restraints on Same-Sex Marriage

Love and marriage, love and marriage,

goes together like a horse and carriage.

This I tell ya, brother,

you can't have one without the other.

      When does a condition on a bequest become impermissible as against public policy by attempting to limit marriage in some way?

"To my darling daughter, I leave my summer cottage unless she remains married to a pirate."

      This clause encourages divorce and would most likely be struck down. Yet another more specific clause, "I condition this gift on my daughter not marrying John Smith the Pirate," would be considered valid in certain jurisdictions.

Keeping The Faith

      Consider a recent estate that gave rise to several cases, including In re Estate of Feinberg, 229 Ill. 2d 667, 900 N.E.2d 1118 (2008) and  In re Estate of Feinberg, 383 Ill. App. 3d 992, 891 N.E.2d 549 (2009). A wealthy couple tried to limit marriage of family members by conditioning bequests on whether they marry within the faith. The clause read:

A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.

      Precedents in a number of states do allow a gift to be conditioned on the beneficiary accepting and adhering to a particular religion. But when that condition is worded in a way that encourages divorce, then it is not enforceable. Not all jurisdictions treat all restraints on marriage the same way, but the clause above was found to be void under Illinois state law as well as the Restatement (Third) of Trusts.

What About Same Sex Marriage?

      A notable exception to full faith and credit was created under the federal Defense of Marriage Act (1996). That law allows a state to refuse to recognize a same sex marriage from another state. But the growing number of jurisdictions recognizing same sex marriage indicate a future where marriage is gender neutral.

      More to the point: Can a testator impose a testamentary restriction on a bequest that prohibits the potential beneficiary from entering a same-sex marriage? The answer might depend on where you are. If a jurisdiction doesn't sanction same sex marriage, then a prohibition against it may be valid since it is not recognized anyway. But if the jurisdiction recognizes such marriages if originating from a jurisdiction where it is sanctioned, then the prohibition could be voided.

Spouses of Convenience

      As more jurisdictions allow same sex marriages or at least  recognize them when they originate from a valid jurisdiction, there is a chance that more marriages of convenience may start to crop up to accomplish tax benefits, health benefits, etc.

      In time, concerns about the faith or sex of whom a descendant will marry may become less important than keeping money in trust for beneficiaries to keep it separate from any claims by various transitory spouses of convenience.