Disinheritance in New York State: Legacies We Do and Do Not Leave

31 Pages Posted: 10 Aug 2010 Last revised: 9 Oct 2011

Date Written: August 10, 2010

Abstract

The recent Illinois case, In re Estate of Feinberg, revealed a divisive split in how society responds to beneficiary restriction clauses, those provisions in a testamentary instrument that disinherit legatees, often on account of their marital status and religious choices. Some feel that such provisions are well within a testator’s intent while others feel that they do little more than give widespread effect to private prejudice. Unrecognized harms and discrimination are a common theme in the twentieth century. We must take care to ensure that we are not acting on ancient biases. The trusts and estates practice is particularly susceptible to longstanding prejudice and practices on account of the substantial amount of deference afforded to the testator’s intent. Furthermore, a strong history of judicial precedent in favor of beneficiary restriction clauses creates a considerable barrier to change.

The definition of the modern family and the scope of freedoms afforded to individuals have expanded substantially in recent years and has become the object of heated debate. The trusts and estates practice is not immune to these changes. In fact, many progressive changes are reflected directly within the language of the Surrogate’s Court Procedure Act and the Estate Powers and Trusts Law. There may come a time when we must account for the risks presented by the systematic endorsement of private prejudice through the use of beneficiary restriction clauses but not while ignoring the deeply personal meaning of such provisions to the testator and their benefits to the families and communities which they support.

Keywords: estate planning, religion, intolerance, inheritance

JEL Classification: K11, K39, Z10

Suggested Citation

Summerfield, Jason N., Disinheritance in New York State: Legacies We Do and Do Not Leave (August 10, 2010). Creighton Law Review, Vol. 43, No. 3, April 2010, Available at SSRN: https://ssrn.com/abstract=1656539

Jason N. Summerfield (Contact Author)

Herbert E. Nass & Associates ( email )

Gray Bar Building at Grand Central
420 Lexington Ave #875
New York, NY 10170
United States

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