Few experiences are more draining and painful than divorce. Few topics engender as much emotion and rancor as arguments over religion. And few acts of government become more emotionally charged than court decisions about how parents can raise their children. So, for a really nasty fight, what could be better than combining all of these into one big mess?

The Illinois Supreme Court's recent decision, In Re Fineberg, seems to uphold the ability of testators (people transferring property through a will or trust) to base the distribution of assets on the religious practices of their beneficiaries. The Fineberg case involved a Jewish couple (the Finebergs) with an estate plan that placed their assets in trust and provided for distribution to their descendants. However, the trust instrument provided that a descendant who married a non-Jewish spouse (that did not convert within a year of marriage) would not receive a share of the trust. Four of the five grandchildren married outside of the faith and were therefore disqualified under the testamentary scheme established by the Finebergs. Overruling the appellate court, the Illinois Supreme Court validated the disposition based upon the religion and seemed to hold that this type of estate planning does not violate public policy.

While, as an attorney, Fineberg provides a basis for me to create religiously-based estate plans, I must note that there are two major problems with the court's decision: (1) it lacks clarity that is bound to engender further litigation and (2) it creates a whole host of legal issues that probate courts in the future will have to resolve.