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Clause in will encouraging divorce violates public policy

Where the decedent’s will excluded one of his sons if he was still married to the same spouse as when the will was executed, this condition encourages divorce and will be struck from the will on public policy grounds.


Kevin J. Connolly had four children, including Susan Connolly and Kevin B. Connolly. Connolly opposed Kevin’s marriage to Francine Connolly. Connolly did not attend the wedding. Deposition testimony showed that Connolly did not approve of the marriage.

Connolly’s will devised a $532,000 house to Susan. Once she died or moved from the house, the house was to be sold and the proceeds distributed to his surviving children.

The will conditioned Kevin’s share this way: “the share which I bequeath to my son, Kevin Brian Connolly, shall not be distributed to him if he is married to the same person he is married to on the date of the execution of this will. Said share shall be divided equally among my surviving children.”

When Connolly died, Susan was living in the house and still does. Kevin petitioned to strike the clause conditioning his share on no longer being married to Francine.


Mr. Stuart, Kevin’s counsel “relies on Meek v. Fox, 88 S.E. 161 (Va. 1916), which stands for the proposition that the Court must strike any provision in a will that imposes an absolute prohibition on marriage if that provision constitutes a condition subsequent on a devised estate. Mr. Stuart argues that Meek v. Fox should extend to provisions encouraging divorce, as in this case, in light of Virginia case law that abhors unreasonable restraints on marriage.

“Counsel then maintains that the contested clause is a condition on Kevin’s estate (the proceeds from the sale of the house) because it will disqualify Kevin from receiving any distribution if he does not terminate his marriage. Mr. Stuart posits that because Mr. Connelly clearly exhibited an intent to encourage divorce and because this condition threatens to cut off Kevin’s share of the estate, the Court should strike the provision under Meek v. Fox, supra.”

Mr. Rodgers is counsel for Sean, one of Connolly’s sons. He argues that although the contested language can be read as encouraging divorce, it can also be understood as reflecting Connolly’s concern for Brian if he and Francine separated. Rodgers asserts that Kevin cannot contest the will because he agreed when it was admitted to probate and that he assumed the risk of disinheritance when he married Francine over Connolly’s objections.

Rodgers also argues “that even if the language is deemed to induce a divorce, the clause merely marks the end of Kevin’s devised estate: It is a ‘special limitation in that it limits Kevin’s bequest if his marital status remains the same as when the will was signed.’ Mr. Rodgers represents that under Meek v. Fox, in which the Supreme Court advised that if a will merely provides that a devised estate will end upon the devisee’s marriage it is not void, in contrast to a condition that threatens to defeat the estate, the Court must uphold the clause in Mr. Connelly’s Will.”


The court must determine Connolly’s intent when he made his will and, if his intent was an undue restraint on marriage, whether the contested clause divests Kevin if he is still married to Francine when the house is sold.

The will “conclusively shows Mr. Connolly’s intent for Kevin to divorce Francine.” Connolly clearly refers to Francine, although not by name, in the will. He was aware of the marriage, and his statement “‘no longer married’ …clearly expresses his intent for them to divorce.”

Virginia law has not addressed will provisions that encourage divorce but there is “strong precedent against wills containing absolute prohibitions of marriage. … [T]his Court finds that a stipulation in a will that encourages a devisee to divorce his or her spouse, absent an intent to financially protect the devisee, is as loathsome as an absolute prohibition on marriage and therefore violates public policy.”

Next, “the Court must determine if the contested clause ‘cut[s] down and destroy[s] this larger estate’ (a ‘condition’), or merely signifies the end of the estate (a ‘limitation’) and is therefore not prohibited. Meek, 88 S.E. at 162. … To clarify, Meek stands for the proposition that an unsavory term in a will must threaten to cut short a devised estate before the Court may strike it. The Supreme Court’s holding in Meek therefore contemplated a condition subsequent rather than a condition precedent or a limitation.”

Connolly’s surviving children get the house proceeds under the will. The phrase “surviving children” is a condition precedent because Kevin’s share did not vest unless he outlived his father, which he has. The contested clause – that for Kevin to take under the will, he cannot be married to Francine – is not a condition precedent because the estate had already vested. It is not a limitation because it does not “mark the extent of time for which the estate is to last.”

The clause is a condition subsequent because it threatens to divest Kevin if he is still married to Francine when the house is sold.

“[U]nder Meek v. Fox, supra, the test to determine if a condition violates public policy … [is] to determine the nature of the condition and the intent of the testator at the time of the execution of the will. This issue is ripe for review.”

Petition granted.

In re Estate of Connolly. Case No. CL 2018-0002347, April 16, 2019; Fairfax Cir. Ct. (Smith). Joseph W. Stuart, John F. Rodgers for the parties. VLW 019-8-037, 7 pp.

VLW 019-8-037

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