The case of Taylor v. Feinberg pitted the descendants of Max and Erla Feinberg against the estate of their grandparents. According to the Feinberg’s will: “A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.” In other words, if anyone marries a gentile, they are to be considered dead.
I am not sure which is more disturbing, that grandparents could relate to a choice made by their grandchildren as synonymous with their deaths, or the appellate court ruling that enforcement of this provision, referred to as “the Jewish clause” (not to be confused with the Santa Clause), was “in valid and unenforceable because it was against public policy”. Public policy for whom? Should clergy be compelled to perform intermarriages because failure to do so is also bad public policy? They are so wrong, they are not even wrong!
Furthermore, the court held that the clause seriously interfered with and limited the right of individuals to marry the person of their choice. No it did not! It simply demanded that those who made a choice of which their grandparents did not approve, not be rewarded by their grandparents’ estate! I’m no lawyer, but if that is not inappropriate judicial activism, I don’t know what is.
None of this is to defend the grandparents though.
While I can understand the fears (about the Jewish future) and hostility (to non-Jews, especially since they came of age at a time when gentiles rejected Jews as suitable marriage partners) which probably informed their decision-making process, having buried people’s children and grandchildren, it’s truly hard to be okay with any parent or grandparent reaching a similar conclusion. Objecting, I understand. Not wishing to reward, I also understand even if I may not agree. But Dead?
People are dead when they are dead, not when they do things of which we may not approve. And confusing a person’s life with their decisions about how to live it can be a very dangerous problem. Many cultures and communities have found that it’s a very short step from declaring people dead for violating social or religious norms, to going out and actually killing those who cross those lines. Perhaps that is what the court was concerned about. We cannot know because they did not explain themselves more fully.
What we can know, is that it never makes sense to love someone less right now, because of the possible future ramifications of their actions in the present. And for those who will surely wonder about it, that includes the practice of mourning inter-married children. In truth, the practice was never about inter-marriage per se’. It was a response (not clear how widely observed) to apostasy and based upon how people decide to marry today, such mourning truly has no place in contemporary Jewish practice.
Author, radio and TV talk show host, and President of CLAL-The National Jewish Center for Learning and Leadership, Brad Hirschfield is the author of 
posted June 3, 2009 at 5:56 pm
My own grandparents, two of them at least, were a mixed marriage. I bless them for giving my mother birth, and I’m fine with the fact they left me a candy bowl and some old photos. And I am grateful every day for their gift of tolerance.
posted June 3, 2009 at 8:40 pm
Rabbi Brad,
The court decided correctly. No individual has the right to declare a living person dead in any matter that touches on the law, and inheritance is a matter of law.
If the Feinbergs had simply stated in their will that no descendants whose marriages didn’t fit the prescribed pattern (or did fit the proscribed pattern) were excluded from inheritance, I doubt the court would have ruled the same way. And if they had ruled the same way, they would have been wrong.
I think the Feinbergs were mean-spirited and short-sighted in how they structured their will. But those qualities are not crimes.
Peace,
Paul
posted June 5, 2009 at 9:27 pm
Regardless of the phraseology, the intent was to disinherit the grandchildren, not kill them. And the thought that it is a short step from declaring them deceased to actually killing them is ridiculous.
Any reasonable person, regardless of hurt sustained by the actions of a child or grandchild, would not give up their own freedom to inflict pain on the child; thus the action of “saying Kaddish” for them.
The lower courts were very clear on the reason for their decision – against public policy. There was no talk of the word “deceased” as having any literal meaning.
And as to Paul, who feels the senior Feinbergs were “mean-spirited,” since when is it a court’s business to tell people what to do with the money that they earned in their lifetime? Max Feinberg died in 1986 and his will was frozen in time as of that date. He is not here today to speak for himself, and his wishes should be upheld.
I also point out that there are three other grandchildren in this family who are married to non-Jews and accept their disinheritance because they are married to spouses that they love and have no desire to challenge Max Feinberg’s wishes. It is one child who has chosen to break the family apart by suing her aunt and her father over “the almighty buck.” Evidently her husband doesn’t keep her happy enough.
And as to this child, who has, figuratively, of course, driven a stake through her father’s heart, you can bet that her father has said Kaddish for her.
posted June 7, 2009 at 3:23 pm
I know the language “shall be deemed to be deceased for all purposes of this instrument as of” sounds really creepy. But it is in fact a standard legal device in the area of probate law. If both spouses die in a common accident, for instance, their wills may provide that spouse #1′s will is to be probated as if s/he had died first, and spouse #2′s will is to be probated as if S/HE had died first. It sounds cumbersome, but is a lot easier than trying to figure out who actually DID die first, which can matter a lot. So the grandparents were not trying to be mean. They were just letting their lawyers do the talking (which even in a legal document is not always the best idea.)
That said, I think the disinheritance clause is a bad idea. It’s time the Jewish community stopped trying to discourage intermarriage and worked harder at making Judaism attractive to possible converts, including but certainly not limited to intermarried spouses.
I doubt my husband’s family is any kind of statistical oddity, and they are about to have their third intermarriage in two generations. The first two resulted in serious conversions and the addition to the Jewish community of two very committed Jews. It wouldn’t surprise me if the third one does the same. Let’s stop complaining and viewing with alarm, and make the most of some real opportunities.
posted June 7, 2009 at 11:40 pm
The comment above Marian’s is from the Feinberg Family, also. It didn’t seem to print correctly.
As to Marian’s comment, a man/woman is entitled to do what he/she wants with his/her money. It would be theirs to give away as they see fit. That being said, it would be understandable for the clause to be unenforceable if it required a crime to be committed in order to inherit money, but wanting to perpetuate your family’s heritage is not a crime.
Jews aren’t the only ones who wish to perpetuate their own heritage. Case law shows similar issues brought by Catholics, Quakers, Greek Orthodox, on and on.
I also point out that the other three intermarried grandchildren have no problem with the clause. The issue in this family seems to be greed – greed of this granddaughter and her husband, who, in fact, is the main force behind the lawsuit.