CCAR RESPONSA
New American Reform Responsa
239. Preferential Treatment of Children in Estates
QUESTION: What is the Jewish law regarding inheritance? May the distribution be rearranged from the standard recommendation and favor one child over another to compensate for the bad luck of that child or inability to take care of itself properly. What role should love play? (Rabbi Richard M. Litvak, Santa Cruz CA)
ANSWER: The entire matter of inheritance is quite complex. Initially it was based on a verse in the Torah which indicated that sons were to inherit and if there were no sons, daughters, and subsequent other kinsman who were specified (Nu 27.8 ff). Daughters were systematically excluded in the early rabbinic period unless no male heirs existed (B B 110a f). Furthermore, the direct descendants of a son also took precedence over any daughters. In this system, lineal descendants took precedence (M B B 8.2, 115a, b; Yad Hil Nahalot 1.3, 5). Sons also inherited from their mother (MB B 8.1), however, the mother’s other family members were generally excluded from inheritance. In this entire system it was taken for granted that daughters received a dowry and, therefore, their economic future was guaranteed. If they were permanently single or not yet married, it was the duty of the brothers to provide for them, including a dowry, so no further economic benefits needed to be bestowed. Appropriate provisions were made in wills to assure or force the giving of a dowry.
In accordance with verses from Deuteronomy, the first born son received a double segment of the estate (Deut 21.16-17). This applied to the father’s estate and even if the first born was a mamzer. This did not apply to daughters. There was a limitation, however, as the first born received a double portion only from the father’s estate not from that of the mother (Yad Hil Nahalot 2.8; Shulhan Arukh Hoshen Mishpat 277.1). The amount to be divided was calculated by the number of sons and the first born received a double portion of that sum. The status of the estate was governed by the time of death. In other words, if a child was born after the death of the father, that child was disregarded for the purpose of calculating this amount (B B 142b). Just as the first born was entitled to a double portion of inheritance of all kinds, he was also responsible for a double portion of the debts of the estate (B B 124a; Shulhan ArukhHoshen Mishpat 278.9).
The right of a husband to inherit from his wife was absolute, although there was a good deal of debate over what rights still existed if divorce procedures had begun (Yad Hil Nahalot 1.18; Shulhan Arukh Even Haezer 90.1). This right to inherit extended to items which she might inherit from someone else (Maharashdam Responsa Even Haezer #98). A wide variety of medieval ordinances dealt with the complex problems of inheritance when sons stemmed from a former marriage. Sometimes the dowry or a portion, thereof, reverted to the wife’s family if she died without children. This was especially true if she died within the first or second year of marriage (Isserles to Shulhan Arukh Even Haezer, 53.3; 118.8; Asher ben Yehiel Responsa55.1). All of these restrictions were intended to adjust to new circumstances and to treat the heir’s family fairly. They protected the inheritance of the wife’s family especially.
Although daughters were excluded from all these matters of inheritance, the sons who received the inheritance had to maintain their sisters and also provide them with adequate dowries (M Ket 4.6 ff; 53b; 68b; Shulhan Arukh Even Haezer 112.10). Of course, if there were no sons, then the daughters received and divided the total estate (Shulhan Arukh Even Haezer 112.18). These laws took effect under normal circumstances. A person could, however, make other provisions by giving away his property during his lifetime and thus circumvent the normal laws of inheritance. He had to operate within the principle ein shetar lahar mitah (Ket 55 b; B B 152a; Shulhan Arukh Hoshen Mishpat 250.9; Moses Sofer Hatam Sofer Hoshen Mishpat 142). Moses Feinstein disagreed with this principle (Igrot Mosheh Even Haezer 104). Often this was done in such a way that the property was given as a gift while the right of usage remained during the lifetime of the owner (M B B 8.7; Shulhan Arukh Hoshen Mishpat 257.6 f). Some kind of formal kinyan (acquisition) was necessary (B B 149a; San 29b; Shulhan Arukh Hoshen Mishpat 250.3; 257.7; 281.7). Depending on how this was worded he could change his mind during his lifetime. In any case it referred only to property then in his possession. He could also stipulate that his property be distributed in accordance with his wishes and that was to be effective one hour before his death (B B 136a; Tur and Shulhan Arukh Hoshen Mishpat 258). Verbal declarations during a fatal illness were considered valid without kinyan (Git 13a; 15a; B B 151a; Yad Hil Zehiya Umatanah 7 ff; Shulhan ArukhHoshen Mishpat 250.1).
It was in precisely the same way that a father could favor his daughters. This was done through a special deed which becomes effective one hour before the individual’s death (shetar hatzi zakhar). Often the deed stipulated that half of a son’s share shall go to a daughter (Nahalat Shivah #21.1). In order to enforce his wishes, the document could also state that if the gift was not made, an unusually high amount of dowry was to be given to the daughter (Isserles to Shulhan Arukh Hoshen Mispat 281.7). This shetar, which takes effect just before the individual’s death, overcame the problem of the rights of succession. The proper language had to be used to indicate that these gifts were serious and permanent and, of course, there have been innumerable cases of challenges.
In the lengthy discussions of wills and estates, which took place in traditional literature, there is little which deals with the question which you have asked.
Some wills cited in the responsa favored one child over another for the reasons mentioned in your questions. Others overcame the problems, which you raised, through the ethical will, a document which appealed to the conscience of the heirs. Although this avenue is open to anyone, it has become primarily a literary device through which scholars and philosophers address the moral problems of their age. The outward form of a father speaking to his children actually addresses a larger audience.
The tradition gradually permitted greater equality among all children in matters of inheritance through the devices mentioned above. The more recent testamentary documents reflect this clearly. Reform Judaism would encourage it. This would, however, not preclude making special provisions to deal with unusual problems among children. In other words, placing funds in a trust to safeguard them against misspending, etc. Traditional Judaism has permitted and Reform Judaism encouraged the equal treatment of all children so that closeness of family and the love of siblings for each other will continue from generation to generation.
November 1987
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