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"The Jewish Clause" and estate planning stipulations

On any given Friday night in New Jersey, about 550,000 families gather around two candles to welcome Shabbat. New Jersey's Jewish community has a rich history with a diverse cultural mix. From the ultra-Orthodox to the easy-going Reformists, no sect is without a home.

With such beautiful heritage, some people want to ensure their family preserves it forever. One way people find to do this is addressing religious concerns when doing legal planning. In particular, estate and trust planning is an area where you can make specifications of a religious nature.

The case that coined the term

A Jewish man in Illinois created a trust in which he explicitly stated that any descendant of his (except his children) who married outside the Jewish faith shall be deemed to be "deceased" for purposes of inheritance. One of his disinherited granddaughters sued for religious discrimination, which led to a long legal battle over the provision which came to be known as "the Jewish Cause."

A lower court struck down the stipulation as an unlawful restraint on marriage. An Illinois appeals court concurred, emphasizing that wills and trusts should not discourage marriage or encourage divorce. But in 2009 the Illinois Supreme Court reversed the appellate decision, ruling that Max Feinberg was within his rights to direct his estate in accordance with his desires to preserve a Jewish heritage.

Inheritance is only one example of religious preference in estate planning. A will might dictate that certain Jewish funeral and burial rites be observed, or that the executor follow specific orthodoxies. Powers of attorney might stipulate that a person of the same faith conduct one's affairs, or forbid medical "heroic measures" and life support. Charitable bequests and trusts might be set up to support only religious causes. And so on.

Is there a "Jewish Clause" in New Jersey?

A New Jersey appeals court affirmed in a 2016 decision that, yes, a testator can cut off his or her heirs for religious reasons. The case centered on Catholic parents who objected to their daughter dating a Jewish man. But it would apply if the religious roles were reversed. When the daughter learned upon her father's death why she was disinherited, she sued to have the will nullified. The appellate court ruled that neither the New Jersey Law Against Discrimination nor public policy prevents a person from disinheriting their children on the basis of religious affiliation.

However, as the Illinois and New Jersey cases show, putting such a clause in one's will (though legal) can lead to irreparable family rifts and years of litigation. Such stipulations should not be made lightly or with malice.

Choosing a trustee and legal advisor for religious matters in estate planning

Housing the second largest Jewish newspaper in America, it is clear that New Jersey is a state where the Jewish community thrives. Family is considered a pillar of faith in Judaism and it should come as no surprise that they want to preserve traditions they hold dear.

If you should choose to include religious clauses in your will, it is crucial to name a person with an understanding and sensitivity to the faith. It could be beneficial to name someone to act as a general trustee along with a person who is affiliated with the religion themselves as a trust protector.

It is also important to work with an estate planning attorney who understands basic tenets of the faith and how to incorporate religious stipulations into clear and enforceable legalese.

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