John T. Brooks and Erika A. Alley are authors of The Jewish Clause published in Trusts and Estates discussing the case of In re Feinberg, 383 III. App. 3d 992 (1st Dist June 30, 2008).

They write:

"Max Feinberg created a trust in which he declared that any descendant of his — that is, any descendant other than his children — “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.”

The parties in Feinberg refer to this provision as "the Jewish clause."

ROUND 1:     The Illinois Circuit Court found the clause to be invalid and contrary to public policy. (Which public policy is that?)

ROUND 2:     A three- judge panel of the First District Appellate Court daffrimed, holding that  the clause is not enforceable.    As stated in the article:

"The court’s majority opinion ends by noting that the clear intent of the Jewish clause was to influence the marriage decisions of Max’s grandchildren based on a religious standard and thereby to discourage them from marrying outside the Jewish faith.  As such, the clause seriously interferes with, and limits the right of individuals to marry whom they choose. It is therefore unenforceable. "

Justice Alan J. Greiman dissented passionately, stating: “Max and Erla had a dream. . . to preserve their 4,000 year old heritage.”


ROUND 3:    Illinois’ Supreme Court has agreed to hear the case.

See Pauline Dubjkin Yearwood’s article, The Jewish Clause, in the Chicago Jewish News.  She reports on the views of an orthodox rabbi who is also an attorney:

"Steven H. Resnicoff, a professor at the DePaul University College of Law who is also an attorney, ordained Orthodox rabbi and expert on Jewish law, agrees.

The case "is significant in that it is different from what the majority of jurisdictions" have ruled, he said in a recent phone conversation. "Therefore estate planners were likely to have thought that it was permissible to structure the will the way it was structured, and unless they hear about it and make changes, the intention of the testators (those making the will) are going to be frustrated. The word has to get out so people can accomplish their objectives in a permissible way."

As for the case itself, he sides with the dissent. "I think it’s unfair," he said of the majority opinion. "The reason given by the majority was that the provision conflicts with public policy in favor of marriage and against divorce. But it seems to me that’s really a smokescreen. What may have rankled some of the people is the fact that someone wanted to influence the heirs’ religious choices. That bothers people, particularly people who are not sympathetic to religion," he said. "It seems disingenuous to make this kind of decision based on the supposed public policies in favor of marriage and divorce."

From the perspective of Jewish law, he said, a person is not supposed to disinherit his or her children unless they have converted to another religion, but since this case involved Max Feinberg’s grandchildren, it was not inconsistent with Jewish law.

Still, Resnicoff said, "the concept under Jewish law is that generally, even if an heir doesn’t behave properly, we hold out hope for that person." So, he said, declaring the grandchildren who married non-Jews "deceased" "doesn’t violate the letter of Jewish law but it does violate the spirit – for very different reasons from what the court said.""