Estate Planning

Estate Planning for Orthodox Christians

by Martin M. Shenkman

(Reprinted with the permission of New Jersey Lawyer, Inc., © February 7, 2000)

There are few areas of the law more personal than estate planning. Confidential family issues, matters of life and death, and other deep and profound issues must be addressed. At this level, personal goals and concerns must be considered. For many clients, religious considerations, especially toward the end of life, are vitally important, even comforting.
Unfortunately, there are few legal treatises, seminars or other sources to help practitioners gain the modicum of understanding necessary to address these matters. While it is certainly not necessary to become an expert in religion, especially since concerned clients can always involve their religious advisers, you must be aware of the issues to raise with appropriate clients and to understand how to pursue them.

To help achieve this goal, this article is the first in a series in which religious experts of different faiths will be interviewed regarding some of the important religious issues that should be addressed in estate plans for adherents to their beliefs.

To start this series, which will appear periodically, I interviewed the Rev. Thomas Hopko, dean and professor of theology at St Vladimir's Orthodox Theological Seminary of the Orthodox Christian Church, which includes all Eastern Orthodox churches, Greek, Russian, Antiochian, etc.

Since the Orthodox Christian Church developed in the eastern portion of the Roman Empire, many congregants are from the Middle East, Greek-speaking regions and Eastern Europe. However, because of intermarriage and conversion, the church's reach is quite broad and may include a wide number of clients.

Q: Living wills and health-care proxies raise a host of religious issues. What are some concerns that attorneys helping Orthodox Christians should address?

A: The church's view of life-and-death issues should ideally be reflected in the living will and health-care proxy. A major tenet of the faith is that it is unethical to take a life. It is not the highest of all values to stay alive, but you cannot affirmatively take steps to kill someone. The church is strongly against euthanasia and suicide. But often if the patient and medical care providers permit nature to take its course without heroic intervention, the person's life may be taken by God.

So it is a narrow path. Taking a life is inappropriate; on the other hand, using heroic medical measures to keep a body biologically functioning would not be appropriate either. Mere biological existence itself is not considered a value. It is not a sin to allow someone to die peacefully and with dignity. We see death as an evil to be transformed into a victory by faith in God. The difficulty is discussing these issues in abstraction; they must be addressed on a case-by-case basis.
Drafting comment: Practitioners should incorporate into the recital clause of the client's living will language affirming the client's affiliation with the church and these basic values. This is especially important because it has become so common in today's society for family members to intermarry and/or adopt different faiths, that a client's religious beliefs should not be left unstated "because the family knows." They often don't! Consider the following sample provision:

"WHEREFORE, My Orthodox Christian beliefs hold that it is unethical to take a life. While it is not the highest of all values to preserve life, affirmative steps to cause death, including but not limited to euthanasia or suicide, are inappropriate. It can be permissible, and even appropriate in some circumstances, to allow nature to take its course without heroic medical intervention, until God determines to take my life. Using heroic medical measures to merely maintain my body's biological functioning is not appropriate since mere biological existence itself is not considered to be of value. My death, if with dignity and proper observance and respect for the rites and traditions of the church, can be a victory of faith."

Q: What about provisions concerning administration of pain relief?

A: We affirm meaning to the act of suffering. It can be an experience providing purification, redemption and salvation. However, we do not encourage suffering - steps can and should be taken to alleviate suffering. Our religion teaches us to alleviate suffering, but one cannot alleviate suffering by taking a life.

Q: What about consciousness? What about traditions near death?

A: Much of the decision has to do with lucidity. Orthodox Christians should make provisions in advance by specifying their wishes in a living will and telling their family. A living will should state your client's wish to have a priest present before death since there are many profound and moving prayers and observances for such a time. These traditions can bring great comfort to the patient and loved ones.

The entire process of dying is sanctified by a series of prayer services and sacraments. It is important that the patient be lucid and free to confess his sins and to receive Holy Communion. The need for consciousness to participate in these sacraments should be considered when administering pain medication. There also is the rite of anointing a person with holy oil for healing of soul and body. Selected prayers are read throughout the process: as suffering increases, as the patient nears death and immediately upon death.

For example, when the patient is in great pain and approaching death, the priest also may say the Prayer of Separation of Soul and Body, asking God to take the life of the person and help him die in peace. Faithful members of the family are encouraged to be present during these prayers.

The desire to have a priest present to say these prayers and administer the sacraments should be communicated in your client's living will. If the family is not present and the living will does not inform the medical care providers, the spiritual needs and wishes of the patient could be overlooked without this provision. And if the children or other family members do not have the same religious beliefs, they may not know of these rites and traditions, or that the parent was faithful.

Drafting comment: A provision governing pain relief included in many living wills should be modified to reflect these important near-death wishes. Consider the following sample provision:

"Provide pain relief to the extent permissible according to Eastern Orthodox Christian doctrines. I wish that all treatment and measures for my comfort, and to alleviate my pain, be provided, so long as they do not arise to the level of constituting euthanasia. In making decisions concerning the administration of pain relief, I request that consideration be given to my Orthodox Christian beliefs, and in particular the importance of my having some level of consciousness prior to death to be able to participate in accepting Holy Communion and making a final confession of my sins, as well as participating in certain prescribed prayer services. I request that my health care agent and medical care providers endeavor to humanely and compassionately balance my desire for pain relief and my desire to participate in these, my last religious observances."

Q: It seems essential that a priest be called to administer these rites and address the decisions.

A: It's quite essential since many of the issues to be decided are gray. Also, the traditions are rich and require time.

Drafting comment: Consider designating a particular priest or church to be contacted and providing contact numbers in the living will:

"Religious principles shall apply to the interpretation of this living will and medical instruction directive. I wish to condition the effectiveness of this directive upon its conforming to Orthodox Christian doctrines and beliefs to which I subscribe. In order to effectuate my wishes, if any question arises as to the requirements of my religious beliefs, I direct that my health care agent consult with and follow the guidance of [insert name and telephone number of the priest], or if not available [insert name and telephone number of an alternate and/or the church]."

Q: What about organ donations?

A: We have no theological problems with organ donations so long as those involved are not trafficking in payments for organs or taking a life to obtain the organ. There is generally no problem from a religious perspective. Many pastors in fact are encouraging organ donations out of compassion for those in need.

Q: One of the issues many religions have been grappling with is the definition of death. If you cannot take a life to harvest an organ, the definition of death is vital because removing an organ too early could be the cause of death.

A: Generally, if the patient would die if the life support were removed, although it is a gray area from a religious perspective, it is unlikely to be an ethical problem to harvest organs at that time. Our ethical experts would probably use the modern medical test of cessation of brain stem activity as a definition of death.

Q: What about informing the patient?

A: It is critical that the patient have complete information as to his or her condition, otherwise the patient will never be able to know when to begin the many important religious observances that are to accompany the process of dying.

Drafting sample: "Wishes concerning knowledge of my condition. I specifically direct my agent and all attending medical personnel to fully and completely inform me and my agent of my medical condition, including but not limited to the fact that I may have a terminal illness and my anticipated life expectancy. This information is vital to my carrying out important religious practices as an Orthodox Christian."

Q: Charitable giving is an important principle of many faiths. How does the church view this in the context of adherents' estate planning?

A: We encourage church members to consider charitable bequests as part of their planning. We especially urge advisers to encourage their clients to consider charitable giving. We have found that people are grateful for the reminder. We believe that providing opportunities for doing good, such as giving to charity, is very important. Historically, tithing - giving one-tenth of one's wealth - was the standard. People still speak about this religious ideal. We believe it is a religious obligation for people to use what they need and to share with others any excess. It would be wonderful for an attorney to suggest that if the client is a believing member of the Eastern Orthodox Church, sharing that wealth with others is part of the teachings of the church.

We have a rich history of charitable giving beginning with the legacy of St Constantine, a fourth-century Roman emperor who used his wealth to build churches, schools and hospitals. The Slavs have a similar history of giving beginning with St. Vladimir in the ninth century. There always have been members for whom giving large gifts to the church was a normal part of their religious life. The great majority of American people do not consider themselves wealthy, but collectively they can provide tremendous help to the church. People with limited resources who give according to their means make a vital contribution to help others. In James 1:27 it states, "Religion that is pure and undefiled before God and the Father is this: To care for orphans and widows in their affliction ..." People are becoming more aware of the religious concept of charity.

Q: What about inheritance?

A: There is a religious obligation to take care for your household. Scriptures say in a Letter to Timothy by the Apostle Paul, "If anyone does not provide for his relatives, and especially for his own family, he has disowned the faith and is worse than an unbeliever." Family at that time extended to more than just the nuclear family. It clearly included the wife and children and other relatives as well. People should give consideration to the needs of family members even beyond spouse and child. How can you love your neighbor if you don't care for your own household?
There are a host of provisions in scripture concerning your responsibility to your family, and, indeed, to the human community as a whole. This is the reason Orthodox Christians must reasonably address life insurance needs, writing a will and all aspects of estate planning. We preach to our people that they have obligations to their spouses and children and to their church and society at large after they die. They must fulfill these duties during their lifetime.