I do not know much about trust and estate law, but I raise a constitutional question about this story (I’m sure you’ve seen). A father, who did not approve of the fact that his son was gay, conditioned his son’s inheritance on the son marrying someone of the opposite sex. The son, in fact, married someone of the same sex.

The HuffPo interviewed a Manhattan estate lawyer, who said:

Joshua S. Rubenstein, a Manhattan lawyer specializing in estate planning, said decedents have a right to shun possible beneficiaries – whether it’s because they have two fathers or because they married someone of a different race or any other reason that might sound unreasonable or even cruel.

“We might all find that repugnant, but it’s your property and you can do whatever you want with it,” Rubenstein said.

But that can’t be right, at least with respect to covenants on land. Racial covenants are unconstitutional. Shelly v. Kraemer told us so.

Would a probate court enforcing such a will (state action, not just a private contract) run afoul of the equal protection clause (assuming that a classification based on sexual orientation warrants something more than rational basis scrutiny?). Or, change the hypo, and assume the will said that a son will only receive an inheritance if he marries a white woman. That seems to be similar to the racial covenant in Kramer.

I seem to recall there was some trusts case involving a will conditioning an inheritance on a son marrying a Jewish girl. I don’t remember if there were any constitutional challenges there.

Update: A colleague sent this Georgetown Law Journal article, titled “Testation as Speech” that compares the statements in a will to protected speech under the First Amendment:

Courts, scholars, and lawyers think of testation — the creation of a will or a trust — as a transfer of wealth. As a result, they analogize the field of decedents’ estates to property, contract, and corporate law: other spheres that regulate the use, conveyance, and investment of assets. Conversely, this Article identifies a quality that makes testation unique: it is a singular form of self-expression. For instance, conditional gifts, charitable bequests, and other posthumous directives often communicate a testator’s or settlor’s deeply-felt views. Likewise, owners’ distributional choices can be profoundly revelatory: by rewarding some beneficiaries and snubbing others, they offer a final assessment of their lives, their loved ones, and the world.

Recognizing testation’s expressive impact has broad implications. For one, there has long been consensus that the Constitution does not apply to limits on testamentary freedom. However, because testation is a “speech act,” some wills and trusts rules, such as the doctrine of undue influence, must satisfy the First Amendment. Moreover, conceptualizing testation as speech bolsters the normative case for testamentary freedom and cuts against the grain of recent developments in decedents’ estates. In the last decade, the rise of law and economics and an unprecedented intergenerational wealth transfer have inspired a series of doctrinal changes that shift power away from testators and settlors in order to enhance the value of the estate. This new fixation on profit maximization overlooks the virtues of testamentary self-expression — the fact that it facilitates autonomy and self-determination — and reflects an impoverished vision of wills and trusts law.

Here is how the article treats Shelley:

Although some fringe members of society will be able to satisfy this test, the emblematic moral hazard testator or settlor—the one who is suddenly emboldened by the ability to speak without repercussions—will not. In addition, there is a plausible argument that racist testamentary covenants would violate the Equal Protection Clause of the Fourteenth Amendment under Shelley v. Kraemer.315 Although Shelley has been whittled away over the decades, arguably it still stands for the proposition that courts cannot enforce race-based ownership restrictions.316 It thus might set an outside limit on galling conditional bequests.

316 See Mark D. Rosen, Was Shelley v. Kraemer Incorrectly Decided? Some New Answers, 95 CAL. L. REV. 451, 461 (2007) (“[B]oth federal and state courts have limited the Shelley rule to the racial discrimination context.”). Admittedly, courts have refused to apply Shelley to non-race- based conditional bequests. See, e.g., U.S. Nat’l Bank of Portland v. Snodgrass, 275 P.2d 860, 866 (Or. 1954) (holding that Shelley did not apply to bequest conditioned on the beneficiary not becoming or marrying a Catholic); Gordon v. Gordon, 124 N.E.2d 228, 235 (Mass. 1955) (same for provision that beneficiary marry someone “born in the Hebrew faith”).