Testamentary Restraints on Marriage

Money is a tool that can be wielded from the grave.

Posted Nov 16, 2017

There is much discussion about the numerous and creative ways in which parents attempt to control their children during life. However, equally interesting are the ways that parents attempt to control their children after their own deaths. This is often done through the distribution of money—through the making of wills, trusts, or other instruments.

“Conditional” language—conditioning a gift upon the occurrence of some uncertain event before it becomes operative—is generally permitted in wills. While not every conditional gift is designed to influence the beneficiary’s behavior, many are devised for that very purpose. Behind these gifts may be different motives, whether it is a desire for control, benevolent paternalism, or even revenge. For example, a 1993 Associated Press story from Romania famously recounts how a “man who was nagged by his wife to stop smoking has left her everything—but only if she takes up his habit as punishment for 40 years of ‘hell.’” 

One recurring issue concerning conditional gifts is testamentary restraints on marriage, when testators (usually parents) condition gifts upon the marriage of the beneficiary (usually their children). Should parents be able to condition gifts upon the type of marriage their children pursue? On one hand, the money belongs to the parent, and the child is not entitled to it. On the other hand, marriage is a deeply personal and pivotal choice for the child.

Courts attempt to strike a balance. In addressing these restraints on marriage, many courts have taken a “reasonableness” approach. The general rule is that complete restraints of marriage—restraints that prohibit the beneficiary from marrying any person at all—are considered per se unreasonable, and void. However, partial restraints (which limit the time or specific class of people) may be valid and “not contrary to public policy” if they impose “only reasonable restrictions”.

An example of a partial restraint can be found in Gordon v. Gordon, where the parent’s will provided:

If any of my said children shall marry a person not born in the Hebrew faith then I hereby revoke the gift or gifts and the provision or provisions herein made to or for such child, and I direct that the portion or portions of my estate, and the interest or interests therein which I have by this will given to such child so marrying a person not born in the Hebrew faith shall be paid and made over to that person or persons who would have been entitled thereto under this will if such beneficiary had died before becoming entitled by the provisions hereof to such portion or portions, interest or interests, without leaving lawful issue.

In Gordon, the child in question married a woman whose parents were Roman Catholic, but after the parent’s death, she “undertook religious instruction under rabbis,” “became a convert to Judaism and received a certificate recognizing her conversion,” and “went through a rabbinical ceremony of marriage.” However, the court affirmed the trial judge’s finding that at the time of marriage, the wife “was not in any sense Jewish or Hebrew and it could not then be said that she was born in the Hebrew faith.” Furthermore the court found that the restraint was reasonable, noting that the “only American case which might be said to hold a testamentary condition against marrying outside a certain religion to be unreasonable could rest on the ground that in the circumstances the restriction of the beneficiary’s choice of spouse to the Society of Friends would operate as a complete prohibition of marriage.”

How does a court determine if a restraint is reasonable? Restatement (Second) of Property, which seeks to set forth general principles of common law, states: “a restraint unreasonably limits the transferee’s opportunity to marry if a marriage permitted by the restraint is not likely to occur. The likelihood of marriage is a factual question, to be answered from the circumstances of the particular case.” Thus, restraints must be analyzed on a case-by-case basis.


Jesse Dukeminier, Robert H. Sitkoff & James Lindgren, Wills, Trusts, and Estates (8th ed. 2009).

Gordon v. Gordon, 124 N.E.2d 228, 234 (1955).

Shapira v. Union Nat. Bank, 315 N.E.2d 825, 827–28 (Com. Pl. 1974) 

Restatement (Second) of Property: Donative Transfers §6.2, cmt. A (1983).

Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 99 U. ILL. L. REV. 1273, 1319-20 (1999).

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