It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a grant, devise, or bequest, on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage—prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as they are “reasonable.” A restraint is “unreasonable” if a marriage permitted by the restraint is not likely to occur as a factual determination.
This article suggests that the fundamental approach to this problem is incorrect. The Reasonableness Test produces extremely problematic results, due to four major flaws: (1) it ostensibly questions the testator’s intent while ingenuously claiming that it does not; (2) it is empirically unsound; (3) it fails to take into account whether the restraint is actually consequential to the beneficiary; and (4) it produces unjustifiably inconsistent results based on geography and time. This article then discusses several alternative approaches to the Reasonableness Test, including the prohibition of all marital restraint provisions, the allowance of all marital restraint provisions, and case-by-case balancing.
A new test is then promulgated: a test for coercion. If we are worried that the provision will force the beneficiary to surrender to an unreasonable marriage or a life of loneliness, we should examine the extent to which the donee is actually influenced by the grant. I argue that the Coercion Test would be a better approach because it avoids the four major problems with the Reasonableness Test; it provides more respect for the testator’s intent than a blanket prohibition, it is more protective of public policy than a blanket allowance, and it provides more consistency than a case-by-case balancing approach. Most importantly, the Coercion Test addresses the crux of the public policy problem: whether an individual’s freedom of choice of marriage is being restricted.
Ruth Sarah Lee
"Over My Dead Body: A New Approach to Testamentary Restraints on Marraiage,"
Marquette Elder's Advisor: Vol. 14
, Article 5.
Available at: http://scholarship.law.marquette.edu/elders/vol14/iss1/5