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In the past week’s parsha (Pinchas) we learned about the laws of inheritance. Among those laws are three which many people in modern-day societies often think of as unfair or inappropriate:
1. That wives do not inherit at all from the husband’s estate (beyond the payment specified in the kesubah)
2. That the oldest son receives a double share of the estate.
3. That daughters do not receive an inheritance* when there are sons.
Just to take from my own personal experience — I have three children — two sons (including a firstborn) and a daughter. Now, if (God forbid) something were to happen to me, I don’t want my kids to get everything. While they are all over bar/bas mitzvah (and hence, adults from bais din’s perspective), they are still far too young to take care of financial matters. I would much rather leave everything to my wife (aside from perhaps some token/meaningful gifts to my kids and some others) and let them inherit from her at the appropriate time (by which time they will [hopefully] be *mature* adults).
In the event that (again God forbid) something were to happen to both my wife and I, we wouldn’t want our daughter to be left out in the cold (in terms of an inheritance). I’m willing to bet that most parents in the modern world would feel that way as well. I would want all three of my kids to share in my estate equally.
Now, I know that there are halachic ways around such problems. You could write a will that makes your entire inheritance into an estate effective the moment before your death — thus avoiding the problem of having any estate to leave over to be divided according to Torah law (since you’ve given it all away a moment before death). But I don’t want to focus on such wills, because I want to focus on a more fundamental question — is it the right thing to do from a Torah perspective?
As we all know, we are supposed to go to bais din (even in the present time) to resolve monetary disputes rather than go to the secular courts. One might think that if both parties choose to do so, they can go to a secular court, since litigants are free to choose any arbitrator that they wish for their dispute. Nonetheless, going to the secular courts is *still* frowned upon because it sends the message that the litigants value secular law over Torah law regarding how to settle monetary disputes.
The same reasoning could apply here. Perhaps it’s technically permitted to leave a will that leaves everything to one’s wife, or divides one’s estate up between the children equally — but is that what the Torah wants us to do? Or does the Torah specifically want us to divide our estates according to the rules laid down? Am I showing disrespect to the Torah because I want to provide more for my wife than simply what was promised in the kesubah? Is it a “slap in the Torah’s face” to want to see to it that my daughter gets an equal share of the inheritance? Or even to leave something to those who are not my direct heirs (siblings, nephews and nieces, friends, etc.)? Is it disrespectful of the Torah that I might want to divide my estate in a manner other than how the Torah specifies? Does doing so send the message that my wants in this matter are more important than the Torah’s wants?
In short, what’s the Torah’s view on this? Is a will (barring one that directs that the estate be divided according to Torah law, of course) a violation of HaShem’s will?
The Wolf
* Yes, I know that daughters have a claim on maintenance from the estate until they are married, but I’m choosing to ignore that for the purposes of this conversation. Assume all the daughters are married.
From Rabbi Neustadt on torah.org:
Parshas Bamidbar
She’alos and Teshuvos
QUESTION: If a testator (a person who makes a will) draws up a legal will which makes provisions that run counter to Torah law (e.g., the oldest son is not given a “double portion” of the inheritance), and the will is probated in court, will beis din overturn the will if its validity is contested by the heirs?
DISCUSSION: Drawing up a legal will whose provisions run counter to the Torah’s laws of inheritance is strictly forbidden by the Torah, and every effort should be made to educate the public regarding the obligation of writing a will according to halachah. But in the event that such a will was drawn up by an attorney and probated in court, either out of the testator’s ignorance or because of his disregard for Torah Law, there is a dispute among the poskim whether or not it can be overturned by beis din. Some hold that if the will is contested in beis din as being contrary to halachah, beis din may declare the will null and void and redistribute the estate according to Torah law.(1) Other poskim, however, hold that a legal will which was probated in court is valid and cannot be contested in beis din.(2) To better understand the issues involved, let us list some of the basic differences that exist between the Torah’s laws of inheritance and the secular law:
# Children: According to civil law, all children -sons and daughters, adopted or natural – inherit equally.(3) According to the halachah, when there are natural sons, daughters and adopted sons do not inherit the estate at all.
# Spouse: According to civil law, upon the death of a spouse, the surviving spouse inherits the estate. According to Torah law, a husband inherits from his wife but a wife does not inherit from her husband; the sons do.
# Maternal relatives – According to civil law there is no distinction between paternal or maternal relatives. The halachah, however, holds that maternal relatives are not considered relatives regarding the halachos of inheritance.
# First born – Civil law does not differentiate between the first born son and his younger brothers. The halachah does; the first born receives a “double portion” [of certain parts] of the estate.
So if, for instance, one draws up a legal will where he divides his estate equally between his sons and daughters and the estate is probated in court, the poskim debate whether or not the sons have the right to contest the will in beis din, as the division is blatantly contrary to halachah. Beis din will then have to rule whether or not they should disregard the deceased’s wishes and redivide the estate according to the halachah. Since there are conflicting views as to the validity of a non-halachic will, and the final ruling will depend on a host of factors, one is well advised to write a will with rabbinical guidance. Otherwise, he runs the risk of having his will overturned by a future ruling of beis din.
QUESTION: Is there any leeway in Torah law for a testator to divide his estate in a manner that is at variance with any of the four points enumerated above? For example, if a testator wanted to disinherit a son, could he do so halachically?
DISCUSSION: There is leeway and he may do so. While, in general, Chazal were strongly critical of those who do not follow the Torah’s guidelines in matters of inheritance,(4) the halachah recognizes that there are many factors involved in inheritance laws (financial, societal, emotional, familial) that the situation may demand an alternate course of action.(5) For example, we mentioned earlier that according to the Torah daughters do not inherit their father’s estate when there are sons. But because this could result in familial strife,(6) in reducing young women to poverty upon the death of their father, or in ruining their chances of marriage for lack of a dowry,(7) Rabbinic leaders searched for halachically permitted methods whereby daughters, too, could inherit at least part of the estate, and indeed, this has become the norm.(8) There are a number of halachic methods available whereby one may distribute a significant part of his estate according to his wishes, as long as a certain percentage(9) of it is distributed according to the Torah’s laws of inheritance.(10) One should contact a Torah observant lawyer or beis din and have them draw up the required documents. But it is imperative that all changes from the Torah’s laws of inheritance be stipulated and finalized prior to the death of the testator. If, for any reason, the testator failed to prepare a halachic will, his estate will be probated by beis din according to Torah law, though it may run counter to his true wishes.
If a firstborn son was born via c/section, does he maintain the rights of a firstborn vis-a-vis inheritance?
Rambam Nachalos 6:11, Mishna BB 133B.
[??] ?? ????? ????? ??????, ????? ?? ???????–?? ?? ?? ???? ??????? ?????? ?? ?????–??? ??? ????? ???? ?????, ???? ?????? ??? ?? ???? ???. ????? ?????? ???, ??? ???? ??? ???? ?????? ???????? ?? ?????? ?? ?????, ????? ??? ????? ???? ?????, ????? ???? ??? ????? ?????.
This does not mean that you can not leave something to others (by giving it away while you are alive, not as a Yerusha), or make the wife in charge of the estate (which is what Halachicly happens if you give her everything, anyway; She does not get all the money) (BB 131b).
WM:
One is “Ruach Chachomim” vs. an Issur Torah, but essentially correct.
Joseph:
2:11
?? ???? ????, ???? ?????–????? ???? ????: ?????? ??? ??? ????, ????? “????? ?? ????” (????? ??,??); ?????, ???? ???? ???.
Joseph-
WolfishMusings-
ICOT:
Have a look at BB 129, as well as the Mishna 130a. Its not so simple. For practical Halacha, ask your LOR.
What if the oldest son is a rasha, and has ill-treated his parents? You hear all the time of children who dump their parents in nursing homes and abandon them, or worse, abuse them physically and mentally. Could Hashem possibly want that son to inherit double portions of the estate? And what if the oldest son is wealthy and the others are impoverished, but he is not the type of sibling to help his younger siblings out financially? What if the care of the elderly parents fell solely to a younger sibling, whose resources were used up in that time period of caring for them? Should that child not be reimbursed FIRST? I guess there are a lot of issues to sort out here.
gavra_at_work-
That was the mishna in Bava Basra that I remembered.
Thank you.
WolfishMusings:1st of all I wish u & family Archas yomim V’shonim!
If you give it as a Matana B’chaim, like setting up an account
now in ur daughters name thats already hers (but she doesnt know about it)
(same for your wife) I don’t see the problem.
Then a person can be modiah them in Tzavoho about what
was already theirs years befor altz a matana, not a Yerusha.
(ppl don’t attack me if i’m wrong just show me a source)
oomis1105:
Very good point. The gemorah over there discusses this, and says (al pi the rasbam) that the yerusha should still not be moved as who knows which grand or great grand children will use the money correctly (It is a machlokes Tanayim).
I think when society was more patriarchal, Jewish will structure made a lot of sense. I think nowadays, it wouldn’t work well. I have a son with one on the way, and I have no idea what I would do.
How would the transfer even work? You set it up to be instantaneously before your death? Thats a little sketchy to me and just “working the system” not following the system in my opinion.
Oomis, schara behei alma lecha, meaning this world isn’t for reward and punishment. Hashem punishes. It’s quite possible the rasha should be rich in order to be punished completely in the next world. Furthermore, who are we to play G-d and determine who is in fact a tzaddik or a rasha? Let Hashem do His. Ours is to follow the mitzvos.
How can you transfer property effective a moment prior to death? You can’t determine or know when death will occur and thus can’t time the transfer to take place prior to death. And once death occurred, it is no longer the deceased’s to transfer. At that point the property belongs to the inheritors.
Do most frum women today follow halacha and recognize their brothers get the full inheritance?
How can you transfer property effective a moment prior to death? You can’t determine or know when death will occur and thus can’t time the transfer to take place prior to death. And once death occurred, it is no longer the deceased’s to transfer. At that point the property belongs to the inheritors.
See BB 147, Gittin 72a. There is no reason why a Chalos can not be set up to be Chal as of a second before death. When death occurs, it was known that as of a second before, the Chalos happened (get was Chal, Nechosim transfered, etc.)
Shmoel: You just say this will be effective a moment before death. That works. And I think many people will take offense at your implication that someone who splits the inheritance with their brothers are not following Halacha.
If there is no will (effective prior to death) today, the brothers split the inheritance without the sisters (halacha l’maisa)?
Many will say the kids split evenly (Dina D’malchusa). Halacha L’ma’aseh is a Machlokes and will probably end up, Rachmana Litzlan, with each kid picking a “Rabbi” who will say they get the most. Hopefully cases like this never come up L’ma’aseh.
EDIT: I assumed in America.
If there is no will (effective prior to death) today, the brothers split the inheritance without the sisters (halacha l’maisa)?
Lets simplify things and say that all parties are in EY, and agree to follow Halacha. Then:
Each daughter gets 10% of the estate (with the second getting 10% of what is left, and then divided equally) for her dowery.
The daughters and wife get to live off the estate until they marry or the wife gets her Kesuba.
The wife gets her Kesuba (either at her request, or when the estate offers it).
After all that, if there is anything left, the sons may get the rest (after all Chovos are paid, etc.)
If I left anything out, it was unintentional.
Sam: The dina d’maclchusa doesn’t shtim. Otherwise do we set Choshen Mishpat aside everytime secular law differs from Shulchan Aruch?
Regarding the machlokes you mentioned, a machlokes between whom? And who holds what (halacha l’maisa)?
gavra: Does that not only apply to daughters who never got married? If she had married she would get nothing, no?
And what is your source about getting 10%? Also, the b’chor gets a double portion.
I don’t have names, sorry. But yes, basically, Dina D’malchusa can override much of Choshen Mishpat, especially in a country with fair monetary laws. And override is probably the wrong word, because one of the rules in Choshen Mishpat is Dina D’malchusa.
Sam: In that case you can throw most of Choshen Mishpat out the window, since secular law addresses almost all monetary issues (differently).
Even without names, what is the machlokes you speak of? What do they say?
Whether Dina D’malchusa takes precedence over laws of Yerusha.
I don’t see what’s so ridiculous about this. Any two parties can agree to whatever stipulations they want in monetary matters (in both Halacha and secular law here). So if no detailed stipulations are made why is it ridiculous to assume that both parties would be willing to follow Dina D’malchusa?
gavra: Does that not only apply to daughters who never got married? If she had married she would get nothing, no?
Correct. It is assumed that she already got as part of her marriage.
And what is your source about getting 10%? Also, the b’chor gets a double portion.
Issur Nechasim is from the Gemorah (Kesubos 68a, as well as other locations). And yes, if there is a real Bechor, he gets double in Muchzak (what that is is a question in of itself) if he is not Mochel.
Sam: If they agree beforehand, sure. That would be in accordance with S”A. But in the absence of a prior agreement, unless it is common business custom to follow a certain rule (in which case it again would be in accordance with S”A), I don’t see how DDD can take precedence over Shulchan Aruch. And issues between two private parties outside of a business setting would surely follow S”A.
As far as Yerusha, what argument could anyone advance as to why halacha would be set aside? And this machlokes you reference, is it between Rishonim? Achronim? Others?
Modern day Rabbanim. Yerusha cases are some of the ugliest I have heard of because the girls always argue Dina D’malchusa (with strong support) and the sons argue Din Torah.
Is there any support for DDD, instead of halacha, in the Rishonim? I never saw any.
As far as Yerusha, what argument could anyone advance as to why halacha would be set aside? And this machlokes you reference, is it between Rishonim? Achronim? Others?
Didnt Aharon Lie to both people having a fight in order to get them to make up, Here we all know that money is the root of all evil and frankly unless the money is split even steven in many cases the siblings may never talk to each other again
Sam- Even if someone would somehow want dina dmalchusa to apply, they would still be forbidden from going to arkayos to adjudicate, and are obligated to go to beis din.
Is there any support for DDD, instead of halacha, in the Rishonim? I never saw any.
Rashi talks about in his time jews would sell non-jewish wine as a business
What does selling non-Jewish wine have to do with dina demalchusa dina? Most frum liquor stores in Brooklyn sell non-Jewish wine to non-Jewish customers and mehadrin wine to Jews. It is indeed not ossur and for business reasons it is permitted but it is not a legal requirement to stock treyf wine in NY.
IIRC the liquor store on Ave J near the subway, being much smaller than the others, has no room to stock non-kosher and sells only kosher.
You don’t have to sell or stock treyf by law in any store except if you’re a kosher grocer who accepts WIC, and even then you’re just forced to stock non cholov yisroel evaporated milk. And you can put up a warning sign telling people that it is not CY.
None of the kosher WIC grocers that I know sell non-CY milk.
WOW, what an epiphany! Wolf mentioned life insurance. How can the death benefit be given to the yorshim the instant before death? The benefit is only payable after death!
Wolf – regarding life insurance benefits, I dont think the halachas of inheritance apply, since the benefits were never your during your lifetime.
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