Although conditional bequests in a will or trust are normally upheld to give freedom that your assets pass the way you want at your death, sometimes conditional provisions are held to be either unconstitutional or void against public policy.

The request for a new trial of a death row inmate due to the judge’s views about race and religion has put the judge’s estate planning and forfeiture clauses (in general) into a rare spotlight. The Dallas Morning News has reported that former Dallas judge Vickers L. Cunningham established a trust for his children whereby they would only inherit if they married someone of their race, the opposite sex and a Christian. The legal team for the death row inmate is using the judge’s trust along with the judge’s statements to his friends and campaign workers about others who were of a different race or religionin addition to various rulings by the judge during the trial to prove the judge denied the death row inmate afair trial. It is not the intent of this article to make any judgment as to whether the inmate had a fair trial or not. The focus is when can provisions of a will or trust be void as being against public policy.

Although you can create a will or trust with lifestyle or morality clauses, certain provisions can be voided as against public policy or for being unconstitutional. So, for example, one can say in his or her will or trust that an intended beneficiary will not inherit if they are a drug addict, but if you say that a child will inherit only if they divorce his or her spouse then that provision could be voided as being against public policy since it promotes family strife. A court will generally not, on its own initiative, invalidate such provisions. The disinherited individual or interested person would have to bring a suit to seek a declaratory judgment to request the court to void the provision as a result of a public policy reason.

Even if there is no state law, there have been cases (based on common law) that have set the precedent that will provisions prohibiting marriage (or encouraging divorce as mentioned above) can be voided as being against public policy. While many may feel that they should have the testamentary freedom to distribute their money as they please, courts have often cited (as a matter of public policy) that individuals (i.e., beneficiaries) should have the right and freedom to make their own life choices without undue outside influence exerted through dead-hand control in the form of a beneficiary restriction clause. Besides the promotion of divorce, other conditional gifts that can be voided include:

1. Promotion of illegal activity obviously, if the receipt of an inheritance is conditioned upon the beneficiary committing a crime, this would go against public policy and the provision could be voided. However, a decedent’s will which required his spouse (as a condition to inheritance) to smoke five cigarettes a day due to her disdain for his practice was upheld. Apparently, the Texas court held that action was neither illegal nortoo dangerous.

2. Promotion of property destruction normally destruction of property as a condition to an inheritance is usually considered a financial detriment to society.

3. Freedom of religion our constitution promotes the freedom of religion. As a result, a will or trust provision that requires the practice of a certain religion as a condition to an inheritance would be against U.S. law. However, partial restraints are permitted and could be valid if there is a requirement that the spouse of a beneficiary be of a particular religion or if the beneficiary marries within a certain time. A case in Ohio validated a will provision that permitted the father to require his sons to marry Jewish girls within seven years of his death. Furthermore, testamentary freedom is more likely to be granted if the beneficiary is not a child or heir at law. An Illinois Supreme Court case upheld awill even though grandchildren would only be entitled to an inheritance if they were married to someone as the same religion as the testator. Since the grandchildren were not the heirs at law (only the children were), this was considered a partial restraint and the will contest of a grandchild was unsuccessful. Furthermore, an Oregon Supreme Court case failed toinvalidate a provision in the testator’s will that his daughter not marry a Catholic.

4. Promotion of restraints of marriage usually, a provision that requires marriage only to a spouse of a particular race or to not marry of a spouse of a particular race would be void as being against public policy as there is a freedom to marry whomever you want.

So, would Judge Cunningham’s trust be validated if contested? Although this author has not seen the entire trust to see if partial restraints were included(including the right of anyone to make changes after his passing), it would seem that his testamentary freedom might be overcome as his trustprovisions could be void as being against public policy(if one of his children brought an action). Perhaps if the only condition of inheritance was that the beneficiary marry a Christian, it may have withstood scrutiny if a beneficiary challenged (although in many courts it would not), but the additional conditions on marriage based on race and heterosexuality increase the likelihood of his provisions being void as being against public policy.

If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming virtualEstate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation

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