PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Restraint On Marriage

As a general rule, a “restraint on marriage” provision in a Will or Trust is void as against public policy. However, devises in restraint of marriage are not void if they are reasonable in themselves, and do not directly operate as an undue restraint upon the freedom of marriage.

There are only two cases in Florida discussing restraint on marriage. The first case is Jenkins v. Merritt, 17 Fla. 304 (Fla. 1879). In Jenkins, the testator provided in his Will that he wanted his wife’s niece to be his daughter’s companion and help take care of her after his death because she was of “weak and imbecile” mind, “addicted to imprudent habits, requiring care and special attention.” The Will provided in part:

The said A. S. Merritt [“trustee”] will pay annually to my daughter Anna Maria Merritt [“daughter”], and my friend Sarah Elizabeth Rawls [“companion”], the interest accruing on said bonds during the lifetime of my said daughter Anna Maria Merritt; provided that the said Sarah E. Rawls shall reside with my said daughter, and if the said Sarah E. Rawls should cease to live with my said daughter, or my said daughter should die, the said Sarah E. Rawls not having left her, then and in that case the said A. S. Merritt is to pay to the said Sarah E. Rawls one thousand dollars in full for all her interest in said bonds, and her interest in said bonds is to belong to my daughter Anna Maria Merritt. [Emphasis added].

The year following the testator’s death, his daughter married Mr. Jenkins. The companion and Mr. Jenkins didn’t get along and she eventually moved out of their house. As a result, the trustee stopped making payments to the daughter. The daughter argued that the Will provision was a restraint on marriage and void. The court disagreed and reasoned that the will did not make marriage a condition of her enjoyment of the bequest. The court, in dicta, described the law of restraint on marriage as follows:

Even express conditions prohibiting marriage, as a condition of enjoying personal legacies, whether such conditions are precedent or subsequent, are not favored by the courts. [Citations omitted]

Mr. Justice Story thus states the general principle, (1 Story’s Eq., 280,) “conditions annexed to gifts, legacies and devises in restraint of marriage are not void if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of marriage generally, then, indeed, as a condition against public policy and the due economy and morality of domestic life, it will be held utterly void.”

The second case is Raulerson v. Saffold, 61 So. 2d 926 (Fla. 1952). In Raulerson, the former wife had certain property conveyed to her by her ex-husband in his will. The terms of the will stated that the property was to be held and used by the decedent’s executors in any manner that in her careful judgment may seem to be in her best interest so long as she remained single. After the estate was closed, the former wife, who never remarried, subsequently conveyed the property to another. The court, in upholding the former wife’s conveyance, reasoned that “[w]hile restraints upon marriage are viewed with disfavor, a majority of courts hold that such a condition is valid where the person restrained is the spouse of the person imposing the restraint….” [Citations omitted].

Because Florida case law gives little guidance on this issue, it is necessary to look to other states and the Restatement of Trusts for guidance. To determine whether a provision in a Will or Trust is reasonable and does not operate as an undue restraint upon the freedom of marriage, you should ask the following questions:

  1. Does the provision serve a valid purpose [Estate of Gimbel, 42 N.Y.S.2d 253 (N.Y. 1943); Lewis v. Searles, 452 S.W.2d 153 (Mo. 1970)]?
  2. Is the provision limited in time [Restatement of the Law Third of Trusts §29, page 63, Illustration #2]?
  3. Is the provision a condition precedent such that there is no “dead hand” control or attempt to control the future conduct of the beneficiary by means of a forfeiture of the bequest [Estate of Max Feinberg, 235 Ill. 2d 256, 919 N.E.2d 888 (Ill 2009)]?
  4. Was the beneficiary timely made aware of the provision [Shackelford v. Hall, 19 Ill. 211 (Ill. 1857)]?

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For an expanded discussion on this topic, including copies of cases and the relevant portions of the Restatement of the Law Third of Trusts §29, refer to my web site at: Gartenlaw.com