Although Erla Feinberg’s final act might have disappointed most of her grandchildren, it carried out her late husband’s dying wish in a way that held up in court.

In a unanimous decision, the Illinois Supreme Court this week ruled that Max Feinberg and his wife could legally disinherit any grandchildren who married outside the Jewish faith as long as the method of doing so did not encourage divorce.

“Although those plans might be offensive to individual family members or to outside observers, Max and Erla were free to distribute their bounty as they saw fit and to favor grandchildren of whose life choices they approved,” Justice Rita Garman wrote.

The origins of the case date to when Max Feinberg, a Chicago dentist, discovered that a grandson was taking a Gentile to the junior prom at Niles West High School. Feinberg wrote his strong feelings about religious loyalty into his will in a section that some family members have dubbed the “Jewish clause.”


When Feinberg died in 1986, his son, Michael Feinberg, and daughter, Leila Taylor, became executors of trusts for their mother. Max Feinberg had stipulated that upon Erla’s death, their grandchildren would become lifetime beneficiaries of those trusts. However, if any of them married outside the faith, and their non-Jewish spouse did not convert to Judaism within a year, he wanted their share of those trusts to revert back to their parents.

After her husband’s death, Erla Feinberg came up with a different scheme, same intent. When she died in 2003, she bequeathed $250,000 to the one grandchild who had married within the faith. The four other grandchildren, who had not, got nothing.

Michele Feinberg Trull, a disinherited granddaughter, argued that the clause, dubbed the “beneficiary restriction clause” by the court, violated public policy by offering money to practice a particular religion.

The court disagreed, pointing out that Erla Feinberg did not set up a system that encouraged heirs to divorce and remarry to claim an inheritance. “Erla did not impose a condition intended to control future decisions of their grandchildren regarding marriage or the practice of Judaism; rather, she made a bequest to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished,” Garman wrote.


Steven Resnicoff, co-director of the DePaul College of Law’s Center for Jewish Law & Judaic Studies, hailed the court decision as consistent with Illinois public policy.

“It’s not just a Jewish clause. It’s a Catholic clause. It’s a Muslim clause,” Resnicoff said. “It’s not uncommon that people want to encourage children to follow in their footsteps. [The] decision emphasizes the principle that, with some exceptions, a person is free to allocate his or her assets as the person sees fit.”

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mbrachear@tribune.com


rgrossman@tribune.com