July 9, 2012 2:57 pm at 2:57 pm #604038
When a father is niftar, if there were four sons and three daughters, with the oldest son the b’chor, does the b’chor receives 40% of the estate and the other three sons receive 20% of the estate, each?
What does the almana get? And do the daughters get anything?
If the mother is niftar first, her husband gets everything?July 9, 2012 5:45 pm at 5:45 pm #884155
Bchor gets double portion. Daughters gets nothing. Wife gets enough to live and eat. Will can change this.
Husband gets everything from deceased wife. (Actually, it was mostly all his to begin with.)July 9, 2012 6:13 pm at 6:13 pm #884156akupermaParticipant
Unless you are quite affluent, the widow (and unmarried daughters) are likely to get everything. For middle class people, the wife’s kesubah (which by halacha is a lien on the husband’s property, rather than a share of the estate) is probably greater than the net worth of the estate.
I doubt anyone would include government insurance and pensions (such as social security and anything you receive covered by ERISA) as part of the estate. Houses are trickier since land belongs to the crown, and all you own are rights to live on it conditioned on following their rules (which in America translates into a rule that the widow gets clear ownership of the house if you bought it jointly – and since it is the state that is granting you the right to the land, Dina Malchusa probably applies).
Also remember that by halacha the sons inherit subject to a requirement to support the mother (American law allows kid to dump their parents on welfare and walk away, halacha doesn’t), so if the mother is alive, the sons are, to use legalese, receiving the estate subject to a condition.July 9, 2012 6:17 pm at 6:17 pm #884157
If the b’chor was born via C/Section, does he still get a double portion?July 9, 2012 6:31 pm at 6:31 pm #884158
The kesuba gives a fixed amount and is usually significantly less than the value of the estate. Yerusha is governed by Choshen Mishpat.July 9, 2012 6:32 pm at 6:32 pm #884159RSRHMember
akuperman: Well written! One correction: American law does not allow kids to dump their widowed mother and walk away. Even if the father’s will disinherits the mother, the widow almost always takes a significant portion of the estate (usually 1/3 or $50,000 – it’s called Equitable Share, you can look it up).July 9, 2012 6:37 pm at 6:37 pm #884160
Choppy: Yes. but like Akuperma said, usually daughters and the wife get everything (well, the daughters if they aren’t married yet).July 9, 2012 7:20 pm at 7:20 pm #884161
Sam: Why is he considered a b’chor if he was born via c/section? There is no pidyon haben.July 9, 2012 7:22 pm at 7:22 pm #884162
Yerusha is governed by halacha, not secular law.July 9, 2012 7:36 pm at 7:36 pm #884163ConcernedMemberParticipant
Best of luck arguing that in court when one of the parties comes forward with a lawsuit and documentation that a verified Will stated otherwise.July 9, 2012 7:40 pm at 7:40 pm #884164Israeli ChareidiParticipant
Choppy: The B’chor for yerusha follows the father. Thus, even if a man has remarried and has had more children with the second wife there will still be only one B’chor for yerusha. For Pidyon Haben, the b’chor follows the mother. Thus, subject to various birthing conditions, a man can have a new b’chor each time he marries a different woman. I don’t mean to sound crass or insensitive – I’m just trying to be very clear.July 9, 2012 8:20 pm at 8:20 pm #884165WolfishMusingsParticipant
Sam: Why is he considered a b’chor if he was born via c/section? There is no pidyon haben.
See Bechoros, Perek 8. The two do not necessarily go hand-in-hand.
The obvious case being if a child is the first of the mother but not of the father (i.e. –he previously had children). To use an example you’re familiar with, Shmuel HaNavi was a bechor for Pidyon HaBen purposes (notwithstanding the fact that he was a Levi) but not for inheritance purposes (since Elkana had previous sons with his other wife).
The WolfJuly 9, 2012 8:22 pm at 8:22 pm #884166
Choppy: That’s an explicit Mishnah in Bechoros, I believe. A C-section is a Bechor Lenachalah but not for Pidyon. Two different requirements. One needs to be Peter Rechem, the other just needs to be the first viable child so long as it’s a son.July 9, 2012 8:54 pm at 8:54 pm #884167hello99Participant
choppy: yerusha goes by ????? ????, pidyon follows ??? ???July 9, 2012 8:59 pm at 8:59 pm #884168
Shlishi: Listening to Dina D’malchusa in Dinei Mamonos is part of Halacha. Also, writing a will to divide assets differently is within Halacha as well.July 9, 2012 9:00 pm at 9:00 pm #884169NechomahParticipant
Choppy, he’s still the first born, but he’s not peter rechem (the one to open the rechem) so he’s not fit to serve in the Beis HaMikodosh, so does not need a pidyon haben. But according to the laws of inheritance, he is still the first born child who is a son to the parents, thus a bechor. I sure hope I said that right.July 9, 2012 11:08 pm at 11:08 pm #884170oomisParticipant
B’chor is b’chor. B’chor PETTER RECHEM needs a pidyon, whereas a C-Section b’chor does not. But he was still born the ben hab’chor. If there are 7 children and he is the eldest, the Yerusha would likely be divided 8 ways, and he would receive two shares. Double doesn’t mean twice as much as ALL of them put together, or half the worth of the estate. He just gets twice what his normal share should have been had he not been a b’chor. At least that is how it was told to me in Yeshivah. Sure hope I don’t have egg all over my face right now, for being misinformed…July 9, 2012 11:10 pm at 11:10 pm #884171MammeleParticipant
Choppy, by your logic, a kohen can never be a bechor.July 10, 2012 12:00 am at 12:00 am #884172
Sam2: If Shulchan Aruch says to split it up a certain way (i.e. a bchor gets a double portion) and the laws of the State of Montana say something else (i.e. a bchor doesn’t get a double portion), halacha prevails. Halacha does not say to disregard standard halacha if the drunk gentile legislators of Montana passed a law saying otherwise. Your argument would have meant you could disregard the entire Shulchan Aruch for monetary matters and simply have gone with secular law. Your argument would have, essentially, meant that a b’chor never gets a double portion (and all the other halachas of yerusha are discarded) since goyishe law says differently. That argument is illogical and is incorrect.July 10, 2012 1:04 am at 1:04 am #884173
Shlishi: Nope. You are wrong. Dina D’malchusa says that all of Choshen Mishpat is dependent on there not being a different law of the land (though I could definitely see the claim that Yerusha of a Bechor is Issur V’heter, not Mamonos).July 10, 2012 2:22 am at 2:22 am #884174
That contention essentially means you can tear out the Dinei Mamonos sections of Shulchan Aruch and replace those pages with your State’s local legislation on monetary matters. That the Torah’s laws (as elucidated in S”A) on yerusha are null and void and completely without meaning or effect, as you contend that gentile law on inheritance completely nullify all the halachas on yerusha. It is completely absurd.
And Rav Eliashev has a teshuva that states that the halacha of Dina D’malchusa does not include monetary matters between people (but, rather, only governmental matters such as taxes.)July 10, 2012 2:31 am at 2:31 am #884175
It is the case, indeed, that on certain business transactions halacha accepts common local business practices (which may encompass local laws) to govern the transaction, even if it differs from the standard law written in S”A, as it is assumed both parties, in advance, agreed or understood that to govern the transaction. But certainly not dinei momonus between private individuals, that are not a business transaction, but rather standard laws as to whether Reuven owes Shimon compensation for damaging his property, etc. Those, certainly (like yerusha), are governed by Torah Law, even if secular law differs.July 10, 2012 2:38 am at 2:38 am #884176
Shlishi: Correct. That is what P’shat in Dina D’malchusa (which is part of Choshen Mishpat) means. What do you think it means?July 10, 2012 3:40 am at 3:40 am #884177RSRHMember
Shlishi: Very good. Let’s say you are right. Al pi halacha, a decedent’s estate passes in accordance with the laws stated in Shulchan Aruch.
Guess what? You can rant and rave all you want, but if Chaim Yankel dies without a will giving away his goods al pi halacha, then IN FACT his estate WILL BE DISTRIBUTED under local laws of intestacy whether you like it or not.
The biggest irony is that the only way he can preserve the default halachos of yerusha is by writing a will, but once he is writing a will halacha allows him to give away his money however he sees fit. So yes, back to square one – unless you live under some kind of autonomous Jewish jurisdiction, the halachos of yerusha do not really have any substantive play in how a person’s estate is distributed after he dies.July 10, 2012 4:02 am at 4:02 am #884178
RSRH: That’s not correct. You’re seeming to come here under the impression that Torah Yidden are bad, while I’m assuming they’re good. A Torah abiding Yid will want to follow halacha. And if halacha demands that an estate be divided in accordance with Shulchan Aruch, then Torah Yidden in line for the yerusha will do so. Even if one could get away with more than halachicly entitled by invoking goyishe law and utilizing arkoyos. He won’t do so. He will say halacha is halacha, I am bound to it, and I will follow it. And if some goyish court or administrator awards him in accordance with secular law, which is more than he is entitled to under halacha, he will voluntarily give it to his brother who is entitled to it under halacha, as determined by Beis Din.July 10, 2012 4:33 am at 4:33 am #884179laughing is good 4 youMember
Forgive me for being naive but why do daughters get nothing?July 10, 2012 4:44 am at 4:44 am #884180
lig4y: Because that is the Halacha in the Torah and as described in Shulchan Aruch.July 10, 2012 4:57 am at 4:57 am #884181
Opinion of Rav Ovadiah Yosef on yerushah and intestacy
Opinion of the Rambam
Opinion of the Ramban
Other Rishonim, including Ramban, Rashba and Rosh, disagree. They hold that civil laws enacted for good of the general population are recognized by halacha in private transactions. Rama (Ch.M. 68:1) cites this opinion as halacha.
Rav Ovadiah Yosef, applying strict adherence to the opinion of Shulchan Aruch, writes that the accepted halacha (at least for Sepharadim) is that dina demalchutah dina only applies to tax and other fiscal laws, but not to laws regulating transactions or disputes between private parties. Therefore, halacha does not recognize the legal inheritance rights of a legal heir who is not a yoresh.
The Rashba wrote that uprooting the laws of yerusha by relying on dina demalchutah dina effectively uproots all of the laws of the Torah. If dina demalchutah had priority over the laws of the Torah, he said, then we would have no need for the Mishnah and Talmud; we would simply teach and apply the law of the land in every situation.
III. Litigation in non-Jewish courts
Rav Ovadiah Yosef concludes that it is forbidden for the non-yorshim to appear in secular court to claim a portion of the estate. If the yorshim wish to share the estate with the non-yorshim, they should execute halachic transfers under the supervision of a bet din.July 10, 2012 1:18 pm at 1:18 pm #884182
Not everyone agrees with Rav Ovadiah Yosef
Given that money is always the root of all evil, too many have seen families torn apart by yerusha disputes, Many have concluded that more equitable distribution is nessasary in order to keep Shalom Bayis.July 10, 2012 1:31 pm at 1:31 pm #884183
Shlishi: So then the person should be able to say Kim Li like the Ramban and be Yoresh according to secular law. That would work even in Beis Din.July 10, 2012 1:53 pm at 1:53 pm #884184
Sam: No. See the teshuva again. Even according to the Ramban (and the other minority Rishonim) who hold Dina D’malchua Dina applies to private transactions, they also agree it does not apply to Yerusha. See the teshuva on this point.July 10, 2012 2:29 pm at 2:29 pm #884185
Sam: Btw, your application of Kim Li is incorrect, even aside from the fact that all shittos hold yerusha must strictly go according to halacha and not goyish law. Even putting that fact aside, a daughter couldn’t claim part of the estate with Kim Li since she isn’t in possession of the parents estate in the first place. Kim Li would only be applicable in a case where the plaintiff is attempting to force the defendant to pay him money the defendant has, and the defendant claimed Kim Li based upon some shitta that holds he doesn’t have to pay the plaintiff. In this case, the daughter is attempting to demand part of the estate, not keep something she already has.July 10, 2012 2:49 pm at 2:49 pm #884186ShelmayMember
See an estate planning attorney who is knowledgeable in halachic and secular law. What many frum people do is sign what is know as a “shtar chatzi zachar” which essentially allows one’s intention to be carried out al pi halacha.July 10, 2012 3:47 pm at 3:47 pm #884188oomisParticipant
Forgive me for being naive but why do daughters get nothing? “
The Torah presupposes that the eldest son will financially look out for his family. In this day and age, that might not be such a certainty. Bnos Tzelafchad came before Moshe Rabbeinu with that issue, and it was a stumper all right. The decision was made that they should marry men within their tribe only, and the Yerusha would go to each husband, so the property remained in the tribe.
I do not know a thing about how yerusha is supposed to work, but I would tend to think that nowadays it would be equitably distributed. A rov should be always be consulted on what is proper, if there is any question.July 10, 2012 4:11 pm at 4:11 pm #884189lesschumrasParticipant
Shlishi, you are ignoring human nature and being naive when it comes to money and yerisha. The Satmar brothers have been slugging it out in CIVIL COURT for years over control of the estateJuly 10, 2012 5:06 pm at 5:06 pm #884190
Torah Law is eternal and does not change with the wind or so-called “human nature”.July 10, 2012 5:17 pm at 5:17 pm #884191
for some reason my original post didnt go thru…the shulchan aruch CLEARLY says (based on a mefurash mishna)a child born from a c-section is NOT a bechor for yerushaJuly 10, 2012 5:20 pm at 5:20 pm #884192
Torah Law is eternal and does not change with the wind or so-called “human nature”.
Do you own any slaves or have mutilple Wives like Avraham, Yaakov and Dovid?July 10, 2012 5:29 pm at 5:29 pm #884193
According to Torah Law you can own slaves and have multiple wives. We don’t have slaves because local law prevent us; and Teimanim Yidden (some) still have a second wife. Ashkenazim have a takana not to. That takana doesn’t violate Torah Law.July 10, 2012 5:43 pm at 5:43 pm #884194
Newhere: Really? Can you show where? Because that is seemingly against a Mishnah.
Shlishi: You’re right. Kim Li should only work with Hamitzi Meichaveiro. Apologies.July 10, 2012 5:49 pm at 5:49 pm #884195
Rabbenu Gershom changed the law about multiple wives
At least some say it was because of human nature that we cannot handle more than one wife.
The Pruzbal also was a change of the torah lawJuly 10, 2012 6:06 pm at 6:06 pm #884196
Zahavasdad: Dead wrong. Rabbeinu Gershom did NOT change Torah Law. That’s like saying when a Kehila makes a takana against large chasunas they are changing Torah Law, since the Torah doesn’t prohibit large simchas. Its a takana.July 10, 2012 6:08 pm at 6:08 pm #884197
Can you please provide the maare makom where shulchan aruch says a cesarian b’chor does not receive two portions?July 10, 2012 6:22 pm at 6:22 pm #884198July 10, 2012 6:44 pm at 6:44 pm #884199
All loans are forgiven in Shmittah year, until Rabbi Akiva instituted a PruzbalJuly 10, 2012 6:48 pm at 6:48 pm #884200
??? ???? ???? ????? ????? ???? ???? ?? ????? ??? ???? Bechoros 47B
SA is CM 277:7July 10, 2012 6:50 pm at 6:50 pm #884201
Furthermore, an IVF child may not be a Yoresh at all (Pashtus of the Igros Moshe re: IVF). Ask your LOR for practical Halacha.July 10, 2012 7:37 pm at 7:37 pm #884202
My bad. I take back what I said. I misremembered the Mishnah. Thank you newhere and GAW. I apologize.
Ohr Chodesh: What about the concept that “Yeish Koach B’yad Chachamim La’akor Davar Min Hatorah Afilu B’kum V’asei” according to many Rishonim? And even according to the others they can still do it B’shev V’al Ta’aseh.July 10, 2012 7:40 pm at 7:40 pm #884203
“The Pruzbal also was a change of the torah law “
Not even close. It was the institutionalization of a previously existing mechanism that always did the same thing. Ayin Shom.
Pruzbal is more similar to the idea of solving the Agunah crisis by having everyone be Mekadesh with a T’nai. It solves an issue using existing, but not well known methods.July 11, 2012 1:16 am at 1:16 am #884204HaLeiViParticipant
By the way, having multiple wives, although allowed was hardly practiced. Which Navi, Tana, Amora or Gaon had multiple wives? In the Torah, those who had multiple wives had it for a special reason and with permission of the first. In Parshas Noach the Torah describes couples as Ish V’ishto.
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