Monday, November 28, 2011
Can I use my estate plan to make sure my son marries a Christian woman?
Conditions in a will that restrain religious practice are usually permitted. The law provides that an effective provision in a will designed to prevent/permit a gift of property on account of adherence to or rejection of a certain religious belief or practice of the beneficiary is valid. Conditions on religious beliefs tend to be invalid only when they coincide with other invalid provisions. If you are concerned about preserving your religious faith and its transmission to future generations, you might want to give property to a child in your will only if he or she marries someone of a particular faith. Such a condition could be held invalid if it unreasonably limits your children’s opportunity to marry (are there enough potential mates in the city/surrounding area to give a realistic opportunity for marriage?)
Jumping to another area of law, there is a constitutional right to marry. Conditions such as above have not been found in violation; merely a restriction upon the inheritance of a testator’s children. Note that this same theory arises when a restraint on marriage applies to only one person whom the testator does not want his beneficiary to marry ( i.e. My daughter will not receive her inheritance should she marry Bill). Just keep in mind, as California holds, there is a constitutional right to marry the person of one's choice and a disposition trying to restrain this right could be found to be a violation in the future. Whether a limitation is reasonable or not is a factual matter, determined on a case by case basis.
What if you don’t like the idea of your wife/husband remarrying after you are gone?
Conditions on marriage are almost always void. But, this does not affect provisions of limitation where your intent is not to forbid marriage, but merely to provide support and protection for your spouse until remarriage occurs. If you wish to reduce the amount your spouse gets once they remarry, the provision is valid where your intent is simply to provide until your spouse forms another relationship. Language in your will becomes very important here; if you had said you wanted to provide for her, but if she remarries the support ends, then this would not be valid. But providing for her until she remarries is valid.
Keep in mind that marriage is not the only way to form a relationship. With enough money at stake, two people may just decide to live together for the rest of their lives, collecting the support money, and not violating any of the carefully constructed provisions.
What will happen if you include an invalid provision in your will?
If you include or try to slip in one of these conditions and it is invalid, they will be disregarded by the court (that’s if your lawyer doesn’t stop you first). And the gift will go to the beneficiary regardless of the provision you tried to tack on. The Civil Code also states that if any condition requires the performance of an illegal or wrongful act of itself (such as X can only have their inheritance if they steal a car or murder Y etc.) the provision including it is void and cannot exist.