“Hashem spoke to Moshe saying that the daughters of Tzelafchad are correct and that they are to receive the inheritance from their father.”
1. Writing a will: [1]
A. Writing a will: [2]
One is to write a will as he approaches his day of death.[3] Some communities are accustomed to do so on the third day of illness of a person.[4] The writing of a will is a Segula for a long life[5], and hence does not have to wait until one is nearing death.[6] Doing so does not infringe on the saying “Don’t open the mouth for the Satan.”[7] [Writing a will at an earlier opportunity is especially necessary today where state laws of inheritance widely differ from the Halachic laws of inheritance. Hence, a legally binding will is to be written to insure a Halachically valid inheritance that refrains the children from engaging in battles that involve contradictions between Jewish and state law.]
Legally enforceable: The will is to be written in front of witnesses, and is not to be left to the testimony of one’s father, or wife and children.[8] It is to be legally binding and is hence to be performed under the guidance of a lawyer.[9] If one suspects that leaving a will can lead to argument and fights amongst the inheritors, he is to divide the items prior to his death.[10]
B. A Halachically valid will:
A Halachically valid will: Every country contains inheritance laws that take effect the moment a person dies, if he did not leave an official legally binding will. Being that state law differs from Jewish law, it is therefore necessary to write a will that confers with Jewish law prior to one’s passing. There are clear Halachic guidelines for the order of inheritance and distribution of wealth and property, and there are various laws that dictate whether one can change this order of inheritance.[11] Certain redistributions are not initially allowed to be done, and some do not even carry Halachic legal status.[12] Furthermore, a will may require a Halachic acquisition performed so it is legally binding, and a typical secular will written by one’s attorney may not meet these standards.[13] Thus, in order that one’s wishes of distribution do not contradict Jewish law and are enforceable under both state and Jewish law, it is necessary that one turn to an Orthodox estate planning attorney who has Rabbinical guidance for the writing of wills, so it complies to both the law of the land and law of the Torah.[14]
Inheriting to daughters and to all children equally: As stated above, per Halacha only sons receive the inheritance and not daughters.[15] Nevertheless, there are various entitlements given to daughters, outside of the official inheritance.[16] In addition, many parents would like all their children, including their daughters, to receive an equal share and hence diminish any disharmony from erupting after death in regards to the estate. Some Rabbanim thus encourage one to [partially] inherit also to daughters, and so was customarily done hundreds of years prior, as brought in the Poskim[17]. There are numerous Halachically valid ways of facilitating an equal inheritance to all children, such as through writing a Shtar Matana to the children which takes effect while the person is still alive[18], or through writing an IOU document to the daughters that is of greater worth than the estate, hence forcing the sons to equally divide the inheritance.[19] Practically, as stated above, one is to seek Halachic and legal guidance in this matter.
Question:
I am a lone woman with no husband or children, and am in the process of writing a will. I would like to leave my money and apartment which I own as an inheritance to a certain Tzedaka organization. I was told that since I have cousins [I never had any siblings] that technically they are my rightful heirs and I need to inherit them the money and apartment. Can you please clarify this matter for me.
Answer:
It is forbidden to bypass the rightful heirs, even if they are Reshaim, and are not the next of kin, if they are inline for the inheritance as explained in Hilchos Yerusha. Nonetheless, while alive you maintain the right to distribute your property as you see fit so long as you leave a sizeable sum also for the Halachic heirs. Thus, what you can do is leave a sizeable amount of inheritance for the relatives, and donate the rest to a charity organization by signing on a Shtar Matana which takes effect one moment before your die. You should speak with an orthodox estate attorney who knows the intricates of Halachos of Yerusha to make your will in a legal and Halachically valid method.
Sources: See Michaber C.M. 281:1; 282:1; Admur Hilchos Mechira 8 that 1) one should not give all of his inheritance as a present to others and leave the heirs with nothing and 2) this applies even if the relative is a Rasha. Igros Kodesh 13:156, printed in Shulchan Menachem 5:338 that there is an Inyan to inherit at least some of his money to the heirs; Lev Aryeh 2:56 who deals with this exact question and answers as above; Chasam Sofer 151, brought in Pischeiy Teshuvah 282:1, that the prohibition of being Maavir Nachalh applies even when one does not have any children
The double portion of a Bechor received in inheritance:
*Important note: All wills are to be written under the supervision of a lawyer as well as an individual who is expert in this area of Jewish law, to ensure its legality. The following is background information about the inheritance of a Bechor according to Jewish law.
- How much does a Bechor inherit?[20]
A firstborn son, who is Halachically defined as a Bechor[21], inherits a double share from amongst certain[22] assets of his father. For example, if a father passed away leaving five sons, and one is a Halachically valid firstborn, the firstborn receives 1/3 [33%] of the assets, while each of the other four brothers receives a 1/6 [17%] of the assets. If the father left nine sons, the firstborn brother takes a 1/5 [20%] of the assets while each of the eight remaining sons takes a 1/10 [10%] of the assets. This method of distribution is to be followed in all cases.[23] [Accordingly, one splits the assets by one more than the current number of children, and the Halachic firstborn receives two of those portions. For example, if there are 5 children, one splits the assets into six portions, and the first born takes two out of the six portions.[24] So if the father left $100,000 of tangible assets for the five sons, the eldest son receives $33,000, while each of the 4 sons receives close to $16,500.]
Mother’s assets:[25] A first born son only inherits a double portion from the assets of his father and not from the assets of his mother.[26] This applies even if he is the firstborn son of his father and mother, nonetheless, he receives an equal portion from his mother’s assets, just as all the other brothers.
B. May a father disinherit the firstborn or give him an equal portion in the will?
A person is unable to change the laws of inheritance in the form of inheritance, to inherit to one who is not an heir, or to disinherit a rightful heir. This applies whether he is healthy or sick [Shechiv Meira], and whether he makes the change orally or puts it in writing [i.e. a will]. Thus, if a father stated that his son the firstborn will not inherit a double portion, his words are meaningless.[27] This applies whether he said that his firstborn son will inherit like a normal son, or he said the firstborn will not take or inherit a double portion, in all these cases, his words are meaningless.[28] [Likewise, if he said that the other sons will inherit a certain amount, which infringes on the double portion of the firstborn son, his words are meaningless.[29]] Even in an area where the custom is that the firstborn does not receive a double portion, one is to ignore the custom, as it contradicts the Biblical law.[30]
Legal ways of bypassing inheriting double portion to the firstborn: The above inability to change the inheritance law of the Bechor, only applies if one stated the above disinheritance of the Bechor’s double portion in a wording of “Yerusha/inheritance,” such as one said “my firstborn will not inherit a double portion.” If, however, the father made his statement in a way of a Kinyan and Matana[31], then he does have ability to change the order of inheritance and he may give the firstborn an equal portion of the Matana/Kinyan or not give him anything at all, and instead give all the assets to the other brothers as a Matana/Kinyan.[32] [Likewise, one may use the method called Shtar Chatzi Zachar, which serves as an IOU addendum to the will, to force the Bechor to get an equal portion just like the other brothers.[33] Practically, this is the common method used today by estate planning attorneys who follow the guidelines of Halacha.] Nonetheless, the Sages were unhappy with one who uses a legally valid method to uproot the inheritance from a rightful heir.[34] Some Poskim[35] however rule that this does not apply if one uses the legal method, to simply equal the portion of the firstborn to that of the other brothers, and not to uproot it entirely.
Question:
I’m writing a kosher Jewish will, and would like to know if my firstborn son is eligible to receive a double portion as the Torah dictates if he was born through C-section and not natural birth?
Answer:
A firstborn son who was born through C-section is not considered a firstborn regarding inheritance and is hence not eligible to receive a double portion.
Explanation: In the laws of inheritance in Scripture the verse [Devarim 21:15] the rights of the firstborn explicitly states, “and he had children born to him/Veyoldu Lo Banim.” Now, the Talmud derives from the word Veyaldu refers to children which were born naturally and not through C-section. Hence, a son born through C-section does not receive a double portion
Sources: Michaber C.M. 277:7; Rambam Nechalos 2:11; Mishneh Bechoros 47b
First son inheriting double portion if born after girl
Question:
I would like to know if my and my 2nd wife’s son who is our firstborn is eligible to receive a double portion as the Torah dictates if he was born after I had a daughter from a previous marriage?
Answer:
He is not considered a firstborn regarding inheritance and is hence not eligible to receive a double portion.
Explanation: A son who was born after his father already had a daughter is not considered a firstborn regarding inheritance and is hence not eligible to receive a double portion. This applies whether the daughter was born to the son’s mother [i.e. maternal and paternal older sister] or was born to a different mother [i.e. only a paternal sister]. This applies even if the son is his mother’s first born.
Sources: Michaber C.M. 277:8; Admur O.C. 470:2; Tur 277:9; Rambam Nechalos 2:9; Mishneh Bechoros 46a; Bava Basra 111b
Children’s inheritance of communal positions held by father:
No custom or contract:[36] A son inherits his father’s position regarding all public matters that the father was empowered with. This however only applies if the son is capable of fulfilling the position. If the son is capable in fulfilling the position then he has priority over any other person, even if the other person is more skilled and capable than him. Thus if the a father was the appointed Chazan of a Shul, after his death the son inherits the position if he is capable of being Chazan, even if there are those that are greater than him.
Custom or contract:[37] The above law only applies in a case that there is no set custom otherwise. If however the custom of the community is not to give automatic precedence to the son, then the community custom must be respected.
[1] Sefer Chassidim 718; Yosef Ometz p. 324 in name of Rabbeinu Yerucham; Sefarim in Nitei Gavriel 1/1; See Michaber 335/7 regarding collecting debts and paying loans
[2] Sefer Chassidim 718; Yosef Ometz p. 324 in name of Rabbeinu Yerucham; Sefarim in Nitei Gavriel 1/1; See Michaber 335/7 regarding collecting debts and paying loans
[3] Seder Viduy of Ramban, printed in Darkei Chesed p. 256
[4] Chochmas Adam 151/11
[5] Igros Kodesh 4/373 that so was said in past; Heard from Rav Groner in name of previous Rebbe
[6] See Igros Kodesh ibid; The Rebbe wrote a will sometime in 1987; Heard from Rav Groner
[7] See Kochavei Yitzchak 1/22; Igros Moshe O.C. 2/111; Yechaveh Daas 3/85
[8] Sefer Chassidim ibid
[9] Igros Kodesh ibid
[10] Rama C.M. 257/7; Mavor Yaabok Sifsei Tzedek 8
[11] See Shulchan Aruch Choshen Mishpat chapters 276 for the order of inheritance, and that when there are sons, no one else inherits, including daughters. See chapter 281-282 regarding redistributing the will against the above guidelines, and when it is valid to do so.
[12] See Michaber C.M. 281/1 that certain redistributions, such as completely removing a heir, are legally invalid in all cases; See Michaber 281/5 that redistributions in a Lashon of Yerusha are never legally binding if the person is currently healthy, and they are binding only if the person is ill at the time of the will; See Michaber 281/7 that redistributions are legally binding in all cases if given as an inter-vivo gift prior to death and not Lashon Yerusha. See however Michaber 282/1 and Admur Hilchos Mechira 8 that even when redistribution maintains Halachic legality, it is not initially permitted to do so. However, there are certain cases of exception, and hence a Rav is to be contacted.
[13] Even when a redistribution is permitted or legally permitted, often, a Kinyan must be made in order to finalize its legal status, and if a Kinyan is not made it can jeopardize the entire validity of the will, even if its’s form of distribution is permitted. This last issue is relevant when one makes a secular will without any formal Kinyan, such as Kinyan Suddar, and enters the question as to whether such a will is legally binding onto the traditional Halachically rightful heirs, even if it was written in a way that does not transgress the laws of Yerusha. This matter is discussed extensively in Achronim, who try to vindicate the custom of many for hundreds of years to rely on a secular will without any formal Kinyan: See Michaber C.M. 281/1-5; Radbaz 1/67; Achiezer 3/34; Igros Moshe E.H. 104; Rama 257/7; Maharam in Mordechai Baba Metzia 254
[14] There are legal and Halachically binding will documents offered by Rabbanim and lawyers that combine one’s secular will with the Halachically permissible terms of contract. For example, if one has a son and desires to inherit his estate also to his daughter, who Halachicly is not meant to receive inheritance in such a case, then he must create a contract which circumvents this prohibition. There are various methods in how this can be accomplished. It is beyond the scope of this book to enter all the details involved in will writing, although we will briefly address inheriting to daughters. The most common method used today is through writing a typical secular will that does not completely leave out any Halachicly destined heir, and the attaching to it a Shetar Chatzi Zachar, otherwise known as an IOU document, which enforce the heirs to comply by the will, otherwise they will have to pay the enormous debt written in the IOU. [See Dinei Yerusha by Rabbi Ari Marburger]
[15] Michaber 276/1; Bamidbar 27/8
[16] Such as giving each unmarried daughter a 10th of the estate. [Even Haezer 113/4; Kesubos 68a]
[17] See Rama C.M. 281/7 that so is the custom
[18] Rama C.M. 281/7; Mordechai Yeish Nochlin; However see ibid that only those assets acquired prior to this contract being written are under distribution for the daughter.
[19] Rama ibid that so is custom; This is known as a Shetar Chatzi Zachar
[20] Michaber C.M. 277:1; Rambam Nechalos 2:1; Bava Basra 122b
[21] See 277 regarding who is defined as a Bechor and who is excluded.
[22] See 278 that only tangible assets that are currently in the hands of the father receive a double portion inheritance. A major example of the above would be a bank account, which is excluded from the double portion being it is not tangible assets and is viewed as owed funds.
[23] The ruling here comes to negate an erroneous understanding of the “double portion”, which interprets it to mean that the first born receives twice the amount of all the other sons put together. Rather, the first born is viewed as if he is two sons, and receives two portions, each one being equal to the single portion of each son, individually.
[24] Smeh 277:2
[25] Michaber C.M. 278:1; Bechoros 51b
[26] The reason: This is learned from the verse which states “Ki Lo Mishpat Habechora,” which means that the status of a Bechor applies to [the assets of] a man and not to [the assets of] a woman. [Smeh 278:1; Bechoros ibid]
[27] Michaber 281:1; Rambam Nechalos 6:3; Mishneh Bava Basar 130a
[28] Michaber 281:4; Rambam Nechalos 6:3
The reason: As the verse states “Lo Yuchal Levaker Es Ben Hahuva.” [Michaber ibid]
[29] Beir Hagoleh 281:9 that the ruling of Michaber 281:3 refers to a case that there is no Bechor
[30] Rama 281:4; Maharik Shoresh 8
[31] By a Shchiv Meira, simply saying the words is considered a Kinyan Matana, while by a Bari [healthy person] an actual Kinyan must be made. [See Aruch Hashulchan 281:1 and 5]
[32] Michaber 281:7 regarding Shechiva Meira; Smeh 281:6 that the same applies for a Bari; Shach 281:4; Beir Hagoleh ibid; Aruch Hashulchan 281:5
[33] See Rama C.M. 281:7; Kesef Hakedoshim 282; This serves as an IOU document, which enforce the heirs to comply by the secular will, otherwise they will have to pay the enormous debt written in the IOU. Thus, for example, the father can write that if his secular will is not abided to by his heirs, which include an equal portion to all sons, and does not distribute a double portion to the firstborn, then all the sons will be owed an equal enormous amount, which surpasses the worth of the inheritance, and hence it will force the first born to only receive one share.
[34] Michaber 282:1; Rambam Nechalos 10:11; Bava Basra 133b; See however Kesef Hakedoshim 282 that this issue does not apply when the share is given in a way of a present or as a Shtar Chatzi Zachar
[35] See Kesef Hakedoshim 282; Kerem Shlomo 282 in name of Halachos Ketanos 2:30
[36] Admur 53/33; M”A 53/33; Rambam Melachim 1/7; Rashba 300; Sifri Shoftim 162; Kneses Hagedola; brought in M”B 53/83; See Piskeiy Teshuvos 53/25; Shevet Halevi 4/128
[37] Admur 53/34; See Tzemach Tzedek 21