Over My Dead Body: A Better Approach to Testamentary Restraints on Marriage

Marquette Elder's Advisor Law Review, Forthcoming

30 Pages Posted: 30 Jan 2012 Last revised: 9 Apr 2012

Date Written: January 27, 2012


Money is a tool that can be wielded from the grave. It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a gift on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage — prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as they are “reasonable.” A restraint is “unreasonable” only if a marriage permitted by the restraint is factually not likely to occur.

This essay suggests that this fundamental approach is incorrect. The Reasonableness Test produces extremely problematic results, due to four major flaws: (1) it ostensibly questions the testator’s intent while disingenuously claiming that it does not, (2) it is empirically unsound, (3) it fails to take into account whether the restraint is actually consequential to the beneficiary, and (4) it produces unjustifiably inconsistent results based on geography and time. This essay then discusses several alternative approaches to the Reasonableness Test, including the blanket prohibition of all marital restraint provisions, the blanket allowance of all marital restraint provisions, and case-by-case balancing.

A new test is then promulgated: a test for coercion. If we are worried that the provision will force the beneficiary to surrender to an unreasonable marriage or a lifetime of loneliness, we should examine the extent to which the donee is actually influenced by the conditional gift. I argue that the Coercion Test is the best approach because it avoids all four major problems with the Reasonableness Test, while providing more respect for testator’s intent than a blanket prohibition, more protection of public policy than a blanket allowance, and more consistency than a case-by-case balancing approach. Most importantly, the Coercion Test addresses the crux of the public policy problem: whether an individual’s freedom of choice of marriage is being restricted.

Keywords: Marriage, partial marital restraints, total marital restraints, wills, trusts, estates, marriage law, family law, freedom of marriage, choice of marriage, testator, beneficiary, dead hand, reasonableness, economic coercion, Shapira, Feinberg, Sherman

JEL Classification: K00, K10, K19, K30, K39

Suggested Citation

Lee, Ruth Sarah, Over My Dead Body: A Better Approach to Testamentary Restraints on Marriage (January 27, 2012). Marquette Elder's Advisor Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1993342 or http://dx.doi.org/10.2139/ssrn.1993342

Ruth Sarah Lee (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

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