## Facts

- Max Feinberg created a pour-over will and inter vivos trust that, after tax-related division into Trust A and Trust B, provided lifetime benefits to his widow, Erla Feinberg.
- Upon Erla’s death, remaining assets were to be distributed to descendants of the couple’s two children, subject to a “beneficiary restriction clause.”
- The clause treated any descendant as “deemed deceased” for trust purposes if the descendant married outside the Jewish faith and the non-Jewish spouse did not convert to Judaism within one year; the descendant’s share would pass instead to the descendant’s parent (Michael or Leila).
- Max’s trust granted Erla a limited testamentary power of appointment over the trust assets.
- Erla exercised the power by will and codicils directing $250,000 gifts at her death to each child and to each grandchild not “deemed deceased” under the trust’s restriction.
- Of five grandchildren, four were treated as “deemed deceased” under the restriction; one granddaughter, Michele Trull, challenged the restriction as an invalid restraint on marriage and contrary to public policy.

## Issues

1. Whether a donative provision conditioning a grandchild’s gift on marrying within the Jewish faith (or timely conversion of a non-Jewish spouse) is void as an unreasonable restraint on marriage and contrary to Illinois public policy.
2. Whether the grandchildren held vested interests at Max’s death or only expectancies due to Erla’s limited testamentary power of appointment, affecting whether the condition operated as a restraint.

## Decision

- The Supreme Court of Illinois reversed the appellate court and upheld the distribution scheme as implemented through Erla’s exercise of the limited power of appointment.
- The court held the grandchildren had no vested interests in the trust assets at Max’s death because Erla’s limited testamentary power of appointment controlled ultimate distribution.
- Because the grandchildren’s interests were merely expectancies until Erla’s death, the provision functioned as a definition of who would take at Erla’s death, not as a present restraint on marriage.
- The court found no clear and dominant Illinois public policy requiring invalidation of the religious-marriage condition under these circumstances.

## Legal Principles

- Illinois public policy strongly favors freedom of testation; otherwise lawful donative provisions are voided on public-policy grounds only in the presence of a clear and dominant policy.
- A limited testamentary power of appointment can prevent putative remainder beneficiaries from acquiring vested interests; until the power is exercised, they generally hold only an expectancy.
- Public-policy analysis of alleged “restraints on marriage” turns on whether the provision imposes an unreasonable restraint (including inducement of divorce or separation) versus a permissible condition that identifies beneficiaries at the time of distribution.
- Private donative choices reflecting religious preferences generally do not constitute state action and are not invalid solely because they reflect discriminatory criteria, absent a controlling public-policy prohibition.

## Conclusion

The Illinois Supreme Court enforced the estate plan as carried out through Erla’s limited power of appointment, concluding that the grandchildren had no vested rights before Erla’s death and that the religious-marriage condition operated as a permissible beneficiary-defining condition rather than an invalid restraint on marriage.


In re Estate of Feinberg, 235 Ill. 2d 256, 919 N.E.2d 888 (Ill. 2009)