Article: Death, Religion, and Sexuality: Testamentary Restraints on Marriage

This article responds to criticism of religiously-based marriage conditions in wills and trusts, which have been said to be incompatible with same-sex marriage. It argues that the wholesale prohibition on religious conditions in the Restatement (Third) of Trusts was an unnecessary and unsupported intrusion on the testamentary freedom of religious testators who hope to encourage their heirs to marry in the faith. Rather, the established public policy framework which has traditionally been applied to testamentary marriage conditions can appropriately protect the rights of LGBTQ individuals to marry as they choose, while also continuing to permit religious testators to place religious marriage conditions on would-be beneficiaries.