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THE YALE LAW JOURNAL FORUM
JULY 7, 2025
Restricted Charitable Gifts to the Government
Reid Kress Weisbord and Christiana Markella de Borja
ABSTRACT. With surprising frequency, the government accepts a restricted charitable gift but
later determines that compliance with the donor's restrictions is illegal, undesirable, or impossible.
The government must then continue complying with a restriction it deems objectionable, and seek
court approval to modify or deviate, or otherwise risk legal consequences for violation. When ac-
cepting a restricted charitable gift, the government often discounts future administration and com-
pliance costs that can significantly undermine public benefits produced by the donor's philan-
thropy.
A rich literature has examined restricted charitable gift policy largely from the donor's perspective.
That scholarship focuses on various mechanisms for supervising and enforcing donor-imposed
restrictions. This Essay accepts as settled law that any charitable donee, including the government,
should comply with donor-imposed restrictions unless legally altered. This Essay then covers new
ground by rethinking the donee's role in philanthropic transfers that most acutely implicates the
public interest in charitable assets: the government's acceptance of restricted charitable gifts.
Through a survey of litigated disputes involving government compliance with a restricted chari-
table gift, this Essay reveals four patterns of frequent conflict: when donor restrictions (1) violate
public policy, (2) diverge from governmental priorities, (3) prescribe a charitable purpose impos-
sible to accomplish with the amount given, or (4) subject the government to liability for gift mal-
administration. Those disputes demonstrate why the government's policy regarding restricted
charitable gifts should not be acceptance by default. The Essay concludes by recommending gov-
ernment-acceptance-policy reforms that better protect the public interest in charitable assets while
providing greater clarity for donors deciding how to structure a restricted charitable gift.
INTRODUCTION
The American doctrine of testamentary freedom robustly protects the right
of property owners to decide how to alienate their assets at death.1 Property
1. See, e.g., In re Szperka's Will, 35 N.W.2d 209, 210-11 (Wis. 1948) ([O]ne of the most im-
portant rights that a normal adult person has is his power to dispose of his property by will](ViewImageLocal?handle=hein.journals/yljfor135&div=1&collection=&method=preview&ext=.png&size=3)