As reported over the weekend by the New York Post, the son of a well-known Manhattan businessman has challenged a provision in his father’s will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum’s will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only ‘mother’ their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum’s wife, Ann Freeman, stated in court papers that her “husband’s will specifically prohibited such a child from becoming a beneficiary.”  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O’Donnell, was included in family dinners and vacations.  Now, Robert and his husband O’Donnell are fighting in court to prove that Frank’s will is discriminatory and in violation of state law and public policy.

“Requiring a gay man to marry a woman … to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple’s attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman.”

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one’s ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a “reasonable restriction”, is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum’s are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  Be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.


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