Parents will immediately offer to help their children, emotionally and financially, when their children get divorced. Some parents actively encourage their children to get divorced. Some parents wish they could take it a step further…and ensure that their ne’er-do-well son-in-laws and daughter-in-laws cannot profit from an inheritance. Can a will actively require a child to divorce a spouse in order for that child to collect an inheritance?
You can write anything you want in a will or trust. There is no governing body that oversees wills and trusts for “acceptability.” If someone decides to write in a will or trust, “To my son, Fred, so long as he is no longer married to Wilma,” that is allowed…it just might not be enforced.
Once wills and trusts are written, they are executed per the language in the will or trust.
“In construing a will, the court’s objective is to ascertain the testator’s intent and to effectuate that intent, provided that it is not contrary to public policy.” In re Estate of Matthews, 948 NE 2d 187 – Ill: Appellate Court, 1st Dist., 4th Div. 2011
If the will or trust says that beneficiary should divorce someone in order to receive the benefit…that’s what the will or trust means.
“[T]he plain intention of the settlor may be ascertained from the unambiguous language of the trust agreement.” Storkan v. Ziska, 94 NE 2d 185 – Ill: Supreme Court 1950
The problem with a clause that encourages divorce in a will or trust is that Illinois law, as a whole, tries to encourage marriage. The stated goals of the Illinois Marriage and Dissolution of Marriage Act are to “[S]trengthen and preserve the integrity of marriage and safeguard family relationships.” 750 ILCS 5/102(2)
People cannot explicitly create written documents that effectuate things that are against public policy.
Public policy is “the principal that a person should not be allowed to do anything that would tend to injure the public at large.” Black’s Law Dictionary (11th ed. 2019)
Wills (or portions of wills) can be voided for public policy only “if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in conflict with the morals of the time.'” Vine Street Clinic v. HealthLink, Inc., 222 Ill.2d 276, 296, 305 Ill.Dec. 617, 856 N.E.2d 422 (2006) (citations and quotes omitted)
The first principle of public policy is that wills should be followed based on the intent of the testators (the will writers).
“Our case law also demonstrates the existence of a public policy favoring testamentary freedom, reflected in the many cases in which a court strives to discover and to give effect to the intent of a deceased testator or settlor of a trust.” In re Estate of Feinberg, 919 NE 2d 888 – Ill: Supreme Court 2009
While society wants the wishes of the deceased to be followed, society does not want to encourage those wishes to be against the greater good of society (for example, you cannot contract to hire a hitman).
Encouraging divorce is against public policy. Therefore, any clause of a will or trust that explicitly requires divorce will not be enforced in Illinois.
“A condition to a devise, the tendency of which is to encourage divorce or bring about separation of husband and wife, is against public policy, and void.” Hall v. Eaton, 631 NE 2d 805 – Ill: Appellate Court, 4th Dist. 1994
The right to give away your estate must be balanced against the public policy against divorce.
“While it is of the first importance to society that contract and testamentary gifts which are calculated to prevent lawful marriages or to bring about the separation or divorcement of husbands and wives should not be upheld, it is no less important that persons of sound mind and memory, free from restraint and undue influence, should be allowed to dispose of their property by will, with such limitations and conditions as they believe for the best interest of their donees.” Ransdell v. Boston, 172 Ill. 439 – 1898
For example, it is perfectly reasonable to leave more money to a child who is divorced and, therefore, has less resources than they would have otherwise.
“Not every encouragement of divorce is objectionable. The interest of parents in advising and protecting their children, even after marriage, is recognized by a privilege to alienate the affections of a spouse, or to induce one spouse to leave another, where that is done to advance what the parents reasonably believe to be their child’s welfare.” Hall v. Eaton, 631 NE 2d 805 – Ill: Appellate Court, 4th Dist. 1994
A term in a will that might tend seem to encourage divorce will still be valid “if the dominant motive of the testator is to provide support in the event of such separation or divorce.” In re Estate of Gerbing, 337 NE 2d 29 – Ill: Supreme Court 1975
The distinction can be more explicitly seen in that an additional award can be allotted if a spouse is dead at the time of the bequest whereas requiring divorce to inherit is invalid.
A will would likely include the possibility that the unwanted spouse die before the heir. “By the provisions of the codicil an absolute future estate was created to vest in [the beneficiary] upon the happening of one of two contingencies, viz., his survival of the death of his wife or his becoming divorced from her. The first is a lawful contingency. It is a common provision in wills that a devise or bequest shall vest in certain beneficiaries upon the death of a person named. Such conditions have never been held invalid. The second, as we have shown, is contrary to public policy and therefore void.” Winterland v. Winterland, 59 NE 2d 661 – 1945
Testators can put conditions in their will that encourage what they believe is moral behavior. For example, requiring a child to be married at the time of death in order to inherit is allowed…but requiring a divorce after the death of the testator is not allowed. One rewards behavior that happened while the other requires behavior to happen in the future.
“[Testators are] free to distribute their bounty as they saw fit and to favor [beneficiaries] of whose life choices they approved over other grandchildren who made choices of which they disapproved, so long as they did not convey a vested interest that was subject to divestment by a condition subsequent that tended to unreasonably restrict marriage or encourage divorce.” In re Estate of Feinberg, 919 NE 2d 888 – Ill: Supreme Court 2009
Usually, parents and grandparents do not really want to cut their children and grandchildren off completely. Testators just want their heirs to divorce their disliked spouses. Courts can interpret the true intent as wishing to give the beneficiary something despite the void divorce conditions.
“[G]athering the testator’s intent from the entire will, that had the testator known that the conditions were void she would have preferred to have absolute title vest in her son rather than to have the gift fail.” In re Estate of Gerbing, 337 NE 2d 29 – Ill: Supreme Court 1975
Parties who contest a will usually are prevented from inheriting anything until the controversy is resolved (this usually eliminates the controversy)
“[T]he doctrine of election, which prohibits a party from both accepting a benefit conferred by a will while simultaneously maintaining an action to contest the validity of that document” In re Estate of Joffe, 493 NE 2d 70 – Ill: Appellate Court, 1st Dist. 1986
Beneficiaries who are contesting a will’s clauses as void for public policy do not have to wait to get their uncontroverted inheritance, however.
“[E]ven though a person accepts a benefit under the will, he is not precluded from questioning the validity of any provisions of the document that are contrary to the law or public policy.” In re Estate of Boyar, 964 NE 2d 1248 – Ill: Appellate Court, 1st Dist., 4th Div. 2012
This divorce lawyer would be a lot busier if wills and trusts required divorce. Instead, I will use my time to research the complicated convex of divorce and probate law in Illinois.
If you’d like to speak with an experienced Illinois divorce attorney, contact my Chicago, Illinois family law firm today.