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

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