Freedom to disinherit your children, including for bigoted reasons

|The Volokh Conspiracy |

On Friday, a New Jersey appellate court in In re Jameson offered a helpful reminder of the limits of antidiscrimination law—whatever its scope may be as to employment, public accommodations and the like, people remain free to decide whom to bequeath their property to, even if they do so for bigoted reasons. The Jamesons expressly provided in their wills that none of their property should go to their only surviving daughter, Stacy Wolin; their wills said that this was because Wolin treated them badly, but Wolin alleged that the real reason was their disapproval of dating (and eventually marrying) a Jew, disapproval that (allegedly) led them to kick her out of the house when she was a college student, and cut her out of their lives afterward.

But the New Jersey court held—correctly, I think—that antidiscrimination principles don't apply to people's decisions about whether to leave property to their children (or to others). People remain free to choose whom to select as heirs (subject, of course, to the obligations that people have to their spouses and minor children). One state—Louisiana—has a French-law-derived tradition of "forced heirship," under which some adult children have a right to inherit part of their parents' property without regard to their parents' wishes; but that is very much an exception, and even that is a substantive entitlement, not an antidiscrimination rule.

For a rare example of a court in a common-law legal system setting aside a will as discriminatory—though even that example was overturned on appeal—see this story from Canada. For a case from Illinois upholding a religiously discriminatory will, see this story.

Note that a court might be limited in its ability to enforce a will saying "I leave my property to those of my children who are not dating Jews" (or "who are not dating non-Jews"), because this would require a court to decide who is Jewish; under the First Amendment, I think courts would be forbidden from making such religious decisions. And there is some argument that the decision in Shelley v. Kraemer (1948) would bar courts from enforcing will provisions that require the courts to choose who will inherit based on race or even based on sex (e.g., "I leave my property to those of my children who are married within our race" or "I leave my property to be distributed among my grandchildren, with each male to receive twice as much as each female"). But if a will simply states "I leave my property to John but not to Jane" or "I leave my property to the Hospitaller Brothers of St. John of God Community Services," the courts will enforce regardless of whether the motivation is racist, sexist, anti-gay, pro-gay, or religiously or ethnically bigoted.

Thanks to Howard Bashman (How Appealing) for the pointer.