Manhattan Criminal Court Judge Robert Mandelbaum is trying to overturn his father’s will that says he must marry the surrogate mother of his child. However, Robert is already married to a man, Johnathan O’Donnell, reports the Daily Mail.
Frank Mandelbaum, Robert’s late father who died in 2007, had set aside a $180,000 trust for his three grandchildren.
According to the New York Post, Robert Mandelbaum’s son Cooper Mandell will lose his inheritance if Robert is “not married to the child’s mother within six months of the child’s birth.”
Yet Robert and Johnathan were married in 2011 when Cooper was 16 months old. The child’s mother is a surrogate, whose name has not been made public.
Robert Mandelbaum claims the only “mother” Cooper knows is O’Donnell.
According to the New York Post, Robert Mandelbaum’s attorney Anne Bederka wrote in court papers: “Requiring a gay man to marry a woman . . . to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy.”
However, wills are a private matter. not public, so it is not clear what chances, if any, Robert Mandelbaum has to overturn the will.
Courts have held that any will provision that encourages or induces separation or divorce is void as against public policy. This means that courts feel it is in the “public’s” best interest to encourage or uphold marriages and is against the interest of the public to have people seek divorce. But courts have upheld will provisions that require a beneficiary to marry someone of a specific faith. For instance, in the case of In Re Silverstein’s Will, a New york court upheld a will provision limiting distribution to grandchildren who married “a person of the Hebrew faith.” The courts have upheld these provisions on the basis that they do not encourage divorce but rather act as a partial restraint on marriage. Courts seem more concerned with total restraints on marriage.
So, where does this leave Judge Mandelbaum and his son?
I believe that Judge Mandelbaum is saved by the fact that he lives in New York, one of the few states that have legalized gay marriage, so he is already legally married under New York law. The only way that he can fulfill the requirements of his father’s will is to divorce his husband in order to marry a woman. Perhaps if he lived in a state that does NOT recognize gay marriage, this may present a difficult issue for the court as the provision wouldn’t then encourage or induce Judge Mendelbaum to seek a legal divorce.