first-year law review

Just another weblog

Dead Hand Control

Let’s deal with the problem of dead hand control. The question is, To what extent should a person be able to use wealth to influence behavior after death? The reason this is a problem is because in the United States, courts don’t substitute their own judgment for the decedent’s, but it seems like there has to be some limit. In the Restatement 3d on Property, it says, “The donor has the freedom of disposition, and pretty much anything goes as long as the donative transfer doesn’t interfere with spousal rights, creditors’ rights, unreasonable restraints on alienation or marriage, provide for promoting separation or divorce, impermissible racial or other categoric restrictions, provisions encouraging illegal activity, and the rules against perpetuities and accumulations.” So there are several limits on the decedent’s right to dispose of his property as he sees fit.


An interesting case we read was Shapira v. Union National Bank. Here, Dr. Shapira said in his will that his each of his sons must marry a Jewish woman, both of whose parents are Jewish. One of the sons, Dan, took exception to that provision and challenged it. The question in this case was whether the decedent’s provision was constitutional or against public policy. The court held that the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution. In Ohio, a testator may legally disinherit his children. Dan argued that enforcing the provision would go against the precedent set in Shelley v. Kraemer that judicial enforcement is the same as state action which restricts the right to marry. Provisions such as Dr. Shapira’s aren’t state action because Dan’s right isn’t restricted, he can marry whomever he wants, he just won’t get the money. Thus, the state isn’t restricting, the dad is, even if the state enforces the will. It is also not contrary to public policy because gifts conditioned on a beneficiary marrying within a particular class or religion constitute only a partial restraint on marriage, which is reasonable and valid and not against policy.


Restatement 2d on Property says a restraint to induce a person to marry within a religious faith is valid if and only if under the circumstances, the restraint doesn’t unreasonably limit the tranferee’s opportunity to marry. However, a will or trust provision is ordinarily invalid if it is intended or tends to encourage disruption of a family relationship.


August 30, 2007 - Posted by | Wills & Estates

1 Comment »

  1. shouldn’t that be Rst. 3rd of properties?, just asking

    Comment by moni | January 31, 2013 | Reply

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: