The Laws of Inheritance
What can be inherited (property, positions in the community such as Rabbi)? Who can inherit (sons, daughters)? What allowances are made to leave property to non-relatives and institutions and what enactments have been made to allow daughters a share in their parents’ estates? In this class Rabbi Dr. Stuart Fischman will delve into all the fascinating details.
The Laws of Inheritance: Lesson 1
Hello and welcome back to the shiur. Today we began our discussion of the laws oh inheritance. We saw two important ideas. On the one hand a person is free to make gifts of his or her property as he or she sees fit. I can give money to a yeshiva or I can spend it all on my pet turtle; the Halacha does interfere in that decision. What the Halacha does regulate is my use use of words relating to the concept of “inheritance.” The Torah states explicitly the sequence of inheritance (sons, daughters, brothers) and it also guarantees the first-born son a double share in the estate. So while a gift to my daughter of all my possessions is valid, should i appoint my daughter as my sole heiress , that appointment is completely invalid and my sons will be my heirs.
Since the Halacha has a mechanism for leaving property to daughters as awell as sons, one may wonder why there is a system of Haachic inheritance which excludes daughters. the Sefer Hachinuch sees a lesson in this “default’ estate system. Parents as a rule worry about providing for their children, and we all know of “estate planners” who do this for a living. The Torah with its automatic, default system for dividing the estate is sending us a message. Parents should not worry so much about providing for their children’s material needs. Hashem takes care of us all. If we are worthy of Hashem’s blessing, and if our children are also worthy, then the blessing of Hashem will be passed on to them without the parents having to hire a lawyer. Hashem will make sure that the children’s needs are met . The parents should concern themselves with making sure that their children are deserving of Hashem’s bracha.
The Laws of Inheritance: Lesson 2
Hello to everyone. Today we discussed the methods by which a person can dispose of property not in accordance with the Torah’s guidelines for inheritance and still not be subject to any Halachic sanctions. We have seen three suggyaot about estates and how they are divided:
1) In Babba Batra we saw that if a person makes gifts of his estate to people who are not his natural heirs the gifts are valid, but the Sages frown upon such behavior
2) Rav Pappa in Kettubot did not object to the father of his future daughter-in-law giving his daughter all of his property (at the expense of his sons)
3) Mar Ukkbah on his death-bed gave half his property to charity.
The resolution of the issue is provided by Rav Chagiz zt”l in his work Halachot Ketanot. rav Chagiz says that the Halacha objects to the total disinheritance of an heir. However if a person leaves “something” from his estate to be divided among the heirs by the Torah’s rules, then he can make gifts out of the bulkn of his estate. We will see bli neder that the approach of Rav Chagiz has been incorporated into what are known as “Halachic wills.”
Iwant to send our best wishes to Tehillah Leah and to everyone else affected by Hurricane sandy.
Bye, Stuart Fischman
The Laws of Inheritance: Lesson 3
Hello everyone, First I am happy to say that I heard from Tehilah Leah. She is physically fine, though she is living without electricity or heat in a devastated part of New York called Far Rockaway (where I happened to live a while back). Our prayers are with her and everyone else who lost their homes.
Today we saw the Shulchan Aruch and commentators who rule that the laws of inheritance can be “worked around” by dividing one’s property as gifts that will take effect prior to one’s death , as long as the person leaves aportion of his property to be divided among the heirs according to Halacha.
The next subject that we addressed was the subject of leaving rperty to daughters. We know that according to the Torah, daughters due not receive a share in the estate. Sons receive shares in the estate and they are required to support their sisters ( and the value of the support may indeed exceed the value of the estate). However, we also see that in the Gemarar itself as well as in the writing of the Poskim, as time went on there were enactments and customs that eventually led to an almost equal division of estates between sons and daughters (in later shiurim I will bli neder explain what I mean by “almost” equal). How can we make laws that go against the explicit expectation of the Torah?
The Rashba wrote a responsum on this matter. He explains that when there is a clear need for a change in the Torah’s system of commercial law, then enactments and customs can be instituted to help Jewish society to function. On the other hand, if the demand for a change in the Halacha is driven by a desire to copy non-Jewish laws and customs, then these changes cannot be instituted because they reflect the community’s scorn for the Torah. For this reason the Rashba expressed his outrage at a community that wished to deviate from the Halacha in order to mimic Gentile estate law .
Finally I mentioned the controversy that arose when the first Chief Rabbi of the State of Israel, Rav Herzog zt”l wished to enact a takanah that would formally equate a daughter’s right to inherit with a son’s.
The Laws of Inheritance: Lesson 4
Hello. Today we saw the two stages in the development of the laws of inheritance as they pertain to daughters. The earliest enactment was the “10% clause.” While sons inherited the estate they were obligated to support their sisters from the estate. In the event that an estate would not suffice to support the sisters and brothers then the daughters would receive the estate and the brothers receive nothing. Additionally, daughters were guaranteed that they would receive 10% of an estate in order to provide them with a dowry. Later, during the medieval period, Ashkenazi Jews adopted the “half-share” document. In this document a father states that he owes his daughter a huge sum of money.and gives his daughter the status of a creditor with a lien against the estate. As a creditor, the daughter is now in a position to demand a share of the estate. The “classic” formula of this document states that the father gives his sons the option to pay the sum of the debt or to provide their sister with a half-share of the estate in order to settle the “debt.” Poskim agree that the father can stipulate that his daughter should receive an equal share to settle the “debt.”
I wish to remind you that next Tuesday we will not be meeting.
The Laws of Inheritance: Lesson 5
Hello everyone. Today we began the study of the rule מצוה לקיים דברי המת, the commnadment to fulfill the wishes of the deceased. According to the Halacha, this rule is not as sweeping as it sounds. there is no blanket, all-encompassing obligation to fulfill the death-bed wishes of the dead. Rather, this rule applies to trustees; when someone is given money to disburse to beneficiaries, the money must be disbursed in accordance with the wishes of the deceased. We saw a teshuvah of the Noda Beyehudah who explains this idea. A father upon his death instructed his wife not to listen to people who tell her to marry their daughter off to her uncle. The widow asked if she is bound by this death-bed instruction.
The Noda Beyhudah answered that this death-bed wish is meaningless. First of all, the daughter is free to marry whoever she wishes, and even if her father were alive he could not forbid his daughter to marry the man of her choice. This being the case, the staus of the widow/mother is no longer that of a trustee . This is because a trustee is defined (for this purpose) as a person who is in a position to execute the wish of the deceased, and the mother cannot prevent the daughter’s marriage. So, since the mother/widow is not a trustee, and since the instruction of the late father is not enforceable, the mother/widow is free to do with the estate as she sees fit. The Noda Beyehudah emphasizes this point by bringing the following example: if a person gives a death-bed instruction to Reuven to give $100 of his own (=Reuven’s) money to Levi, would anyone claim that Reuven is bound to give this money to Levi? In other words, מצוה לקיים דברי המת only applies to instructions given by the deceased with regard to the disbursal of the estate.
The Laws of Inheritance: Lesson 6
Hello- today we completed the discussion of מצוה לקיים דברי המת. We saw various opinions on what this concept entails and how does it mesh with the mitzvah of כבוד אב ואם. Some poskim discuss מצוה לקיים דברי המת and ignore כבוד אב ואם and others do bring it up. Presumably, the poskim who do not bring up כבוד אב ואם ignore it, because the children/heirs are not expected to perform כבוד אב ואם with their own money, and the estate is the property of the heirs.Other poskim write that there is a mitzvah of כבוד אב only in matters that affect the physical welfare of the parents, and this is clearly not the case when carrying out the wishes of a parent who is deceased. Other authorities write that even if כבוד אב ואם and מצוה לקיים דברי המת do not apply, there is a מצוה to perform the wishes of a deceased parent as an act of charity.
Finally we saw a תשובה about an heir whose benefactor has come repeatedly to him in dreams, asking him to move his body to Israel for re-burial. The חלקת יעקב replied that in money matters we rule that dreams are irrelevant, and that the heir is free to ignore the dreams. But, the חלקת יעקב adds, even though the money of the estate is the sole property of the heir, if he wishes to move his benefactor for burial in israel, this would be a good deed.
The Laws of Inheritance: Lesson 8
Hello everyone. Today was the final shiur of the zman. We finished the discussion of inheriting a father’s position of rabbi. The Hatam Sofer distinguishes between positions of political authority (king, court official or police officer) and positions of spiritual leadership. The Hatam Sofer writes that the the positions which the Rambam says are inherited based on the example of the king are all positions of political authority. The fact that the positions of Kohen Gadol and Mashu’ach Milchama are not derived from the law regarding the dynastic nature of the kingship proves that positions of spiritual leadership are not dynastic. The Hatam Sofer concludes that the community has the right to choose the rabbi of their choice and they do not have to take into account the geneology or even the relative scholarship of the applicants.
Next we saw a teshuvah of the great Chassidic leader, the Divrei Haim. He was asked to decide which of the three sons of a deceased Hassidic leader should inherit his position. The Divrei Haim responded by pointing out the fundamental difference between the position of “rabbi” as opposed to a “rebbe.” It can argued (as we saw last week) that the position of “rabbi” can be inherited. However the position of “rebbe” is attained when the public seek out a person who is perceived as being holy and capable of providing guidance. The qualities of a rebbe cannot be inherited. The Divrei Haim says that either one is or is not perceived as holy by the public. He points out that in the early history of Hassidut the positions of leadership were passed down to the students of the leaders (from the Ba’al Shem Tov, to the Maggid of Mezeritch, to the Berditchiver ) and never to the sons of these leaders, despite their worthiness.
We ended with a teshuvah about an apparently “pedestrian” dispute about the inheritance of Shabbat candlesticks. we see how the Minchat Yitzchak zt”l weighs the competing claims and arrives at a compromise.
Thank-you for your participation, Stuart Fischman
Rabbi Dr. Stuart Fischman graduated from Yeshiva University in 1980 and the dental school of Columbia University in 1985. In 1989 he began studying and teaching at Yeshivat Hamivtar and now studies and teaches at Yeshivat Machanaim in Efrat. He has rabbinic ordination from Rav Zalman Nechemia Goldberg.