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Trusts and Estates
Temple University School of Law
Wolfe, Suellen

Prof. Wolfe
Spring 2008

I. Problem of the “Dead Hand”

A. “Dead hand” control arises where a decedent continues to exercise power over his or her
property, and by exercising power over the property exercises control over a beneficiary, by
conditioning a gift to a beneficiary upon a beneficiary behaving in a certain way.

B. The general rule is that testamentary conditional gifts (“dead hand” control) are valid unless they violate public policy, or judicial enforcement of the condition would constitute state action violating constitutionally protected rights.

C. Restatement (Third) of Property: Wills and Other Donative Transfers (p. 20) (comments)

1. The organizing principle of the American law of donative transfers is freedom of disposition. Property owners have the nearly unrestricted right to dispose of their property as they please.

2. Unless disallowed by law, the donor’s intention not only determines the meaning but also the effect of a donative document.

D. Shapira v. Union Nat’l Bank (OH 1974) (p. 21)

1. Facts: Father bequeathed a portion of his estate to his son provided that he is married to a Jewish girl at the time of the testator’s death or within seven years of the testator’s death.

2. Issues: Is a partial restraint on marriage in a will a violation of the right to marry protected by the 14th Amendment? Is a partial restraint on marriage that imposes only reasonable restrictions valid and not contrary to public policy?

3. Holding:

a. The partial restraint on marriage in this situation does not violate the 14th Amendment because the court is not being asked to enforce a legislative restriction on the son’s right to marry. Rather, the court is asked to enforce the testator’s restriction on his son’s inheritance. The right to receive property is not a constitutionally guaranteed right.

b. This partial restraint on marriage does not violate public policy. A partial restraint on marriage which imposes only reasonable restrictions is valid, and not contrary to public policy.

4. The great weight of authority in the United States is that gifts conditioned upon the beneficiary’s marrying within a particular religious class or faith are reasonable.

5. If the facts were such that the aid of the court were being sought to enjoin the son’s marrying a non-Jewish girl, the doctrine of Shelley v. Kraemer would apply.

6. The court thought that the provision made by the testator for the benefit of the State of Israel upon the son’s breach or failure of the condition was very significant for two reasons:

a. It distinguished the case from bare forfeitures.

b. It demonstrated the depth of the testator’s conviction.


b. The rationale behind this rule is that destruction of property inter vivos carries with it an economic cost that deters owners. However, destruction of property at death carries with it no meaningful economic cost for the decedent and deprives society of the opportunity to determine the best use of the property.

F. Remedy for Conditional Gift that Violates Public Policy

1. The critical variable is whether there is a “gift over” clause, which provides where the gift is to go if the condition or restriction is not satisfied.

2. Where there is a gift over clause, more often than not the courts will strike the condition as void as against public policy, but the courts will not give the property to the beneficiary subject to the condition. Instead, the property will be distributed to the beneficiary under the express gift over clause.

3. Where there is no express gift over clause, more often than not the courts will simply strike the void condition / restriction and permit the beneficiary subject to the condition to take the property free and clear of any conditions.