CCAR RESPONSA
5765.10
Inheritance: How Much To Leave To A Child?
She’elah
I received a call from a temple member who is rewriting his will and would like some guidance from Jewish tradition regarding disposition of his assets upon his death. He has two children and three grandchildren and is concerned about leaving so much to them that they might not lead productive lives. He seeks some kind of formula on how his wealth should be divided between charitable bequests and gifts to his family. His philanthropy occupies an ever increasing amount of his semi-retirement time. (Rabbi Stephen S. Pearce, San Francisco, CA)
Teshuvah
For a comprehensive treatment of the Jewish law of inheritance, as well as for a consideration of a question quite similar to the one you ask, we refer you and your congregant to a teshuvah of our colleague and teacher R. Walter Jacob.[1] The issue dealt with the distribution of the estate: may the normal order of inheritance be “rearranged from the standard recommendation and favor one child over another,” to compensate for that child’s “bad luck” or inability to take care of him- or herself? Unfortunately, as Rabbi Jacob notes, “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.” The same might be said for the present she’elah. The tradition offers no specific formula of the kind that your congregant seeks. Still, it offers guidance as to how a parent should think about these issues, and from that guidance we might be able to formulate a general approach, if not a specific formula. We therefore turn to a consideration of those aspects of the Jewish law of inheritance relevant to your question. Once again, a fuller analysis may be found in Rabbi Jacob’s teshuvah. This responsum relies upon many of the sources he cites and accordingly should be read as a supplement to his work.
Your congregant seeks to rewrite his will so as to limit the amount of his estate that he leaves to his children and grandchildren. The difficulty with this course of action, from a traditional Jewish perspective, is that the Torah sets forth the order of inheritance in strict and specific fashion. Property is inherited by sons, not by daughters (unless there are no sons); the first-born son receives a double portion of the estate; and so forth. No “will” is valid at Jewish law that deviates from the Torah’s order of testamentary succession.[2] In fact, Jewish law does not recognize a “will” per se, since the “last will and testament” familiar in our contemporary legal systems takes effect only upon the death of the testator (i.e., the one who issues the will), and according to the Jewish legal tradition a gift made after the death of the donor is invalid (ein shetar le’achar mitah).[3]
None of this means that an individual is powerless to affect the ultimate distribution of his property. He may do so in any way he wishes, provided that he does it in the form of a gift executed while he is still alive. The gift may be made while he is perfectly well (matanat bari) or when he is on his (presumed) death bed (matanat shekhiv mera`). In some cases, the Rabbis encouraged a father to make such gifts as a means of rectifying the perceived inequities of the inheritance laws.[4] In theory, then, so long as he executes valid acts of gift prior to his death, therefore, a father can create his own order of “inheritance,” transferring his estate to anyone he wishes.
Does this mean that a father may effectively disinherit one or more of his children under Jewish law? Not exactly. Although he is legally empowered to make gifts prior to his death, “the Sages are displeased” with the one who “gives his property to others and leaves his children with nothing,” even if his children are not of good character.[5] The reason given for this is that, even if one’s child does not act properly, how does one know that the child’s son will not be worthy?[6] One should therefore leave intact the Torah’s order of succession rather than try to influence one’s children’s behavior from beyond the grave. True, one authority suggests that “the Sages” would not be “displeased” with such a gift so long as the donor reserves a symbolic (if small) amount for his legal heirs.[7] Others, however, approve of this device only when the donor has no children and would be inherited by other relatives; if he has children, they insist, the principal part of his estate (`ikar `izevono) must go to them.[8] It follows that, while Jewish law enables parents to transfer their estate away from their children, it prefers that they not do so.
The tradition also teaches that it may be unwise for parents to attempt to control the behavior of their adult children. The Talmud, for example, forbids a father from exerting physical discipline upon his adult son, on the grounds of the commandment: “do not place a stumbling-block before the blind” (Leviticus 19:14): that is, the discipline might cause the son to lash out in resentment or to bear a grudge against his father and thereby violate the commandment “honor your father and your mother.”[9] There is a time, in other words, when overt acts of discipline or “education” toward our children become inappropriate and counterproductive. While it is understandable, therefore, that this parents wishes to influence his children in a positive direction, Jewish tradition would counsel him (and all of us) to seek a proper balance between actions that express legitimate parental concerns and those which, however well-intentioned, would be perceived as intrusive or punitive.
Let us now consider our she’elah in light of both our Jewish tradition and the particular perspective that we Reform Jews bring to bear upon it. What sort of guidance does it offer our sho’el? First, we would note that as Reform Judaism insists upon gender equality in matters of religious or legal obligation, it makes no difference whether the testator is a father or a mother, and it is irrelevant whether the heir is a son or a daughter. The rules of inheritance ought to be the same in either case. Second, we see nothing objectionable in the tradition’s strong preference that the children receive “the principal part” of the estate. At the same time, we think that parents on occasion may have a legitimate interest in determining that their estates be distributed in a manner other than that specified in the classical Jewish order of inheritance. The power to disburse the estate through gifts made prior to death can be an effective means of performing acts of tzedakah and social justice, and it is a tool through which unfortunate consequences might be avoided. Third, although we agree that parents should not distribute their estate in a way that the children will see as “punitive,” there is no reason why they cannot set reasonable, non-punitive terms to govern the estate’s distribution. We suspect, in other words, that “the Sages” would not be “displeased” if a parent sought to establish reasonable controls upon the distribution of the estate to adult children who, in her considered judgment, would use it to negative ends. For example, while the tradition offers your congregant no “formula” of the kind he seeks, it would permit him to stipulate that the inheritance be distributed in stages. He might establish a trust fund that would insure his children and grandchildren receive a certain level of income even though they are not permitted to access the principal. He might also stipulate the purposes for which funds may be withdrawn from the trust: to pay tuition and other educational expenses, to assist the children and grandchildren in entering business or professional life, to make donations to tzedakah, and so forth. Given that these purposes allow either the father or his heirs to perform mitzvot, such stipulations do not in our opinion qualify as punitive in nature. They serve rather as proper expressions of a parent’s wish that his children and grandchildren might leave, as our she’elah puts it, “productive lives.”
The children and grandchildren, of course, might disagree with this assessment and regard restrictions of this type as “punitive” indeed. For this reason, among others, it is obviously the better course for your congregant and his heirs to resolve their differences while he is still alive. Surely both sides would wish to avoid the unpleasantness that all too often erupts among families over provisions in a deceased person’s will. If, however, such a resolution proves impossible to achieve, your congregant is entitled according to the letter and spirit of Jewish tradition to dispose of his estate along the lines that we have suggested.
NOTES
- Questions and Reform Jewish Answers (New American Reform Responsa), no. 239 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=239&year=narr ).
- The father may, however, direct his entire estate to one legitimate heir among the others; M. Bava Batra 8:5; Yad, Nachalot 6:2; Shulchan Arukh Choshen Mishpat 281:1. This is the case only when he is shekhiv mera`; see below.
- See B. Bava Batra 135b; Yad, Zekhiyah umatanah 8:12; Shulchan Arukh Choshen Mishpat 250:18.
- One famous example of this is the ketubat banin dikhrin (M. Ketubot 4:10), an obligation that the Rabbis imposed upon the groom at the time of marriage. The groom was to stipulate that upon his death his wife’s sons would inherit the entire value of their mother’s ketubah; they would not be required to share that sum with sons that their father may have had by other wives. The purpose of this obligation was to encourage the bride’s father to make a gift of property to her prior to marriage (“that he would transfer property to her as he would do to his son”), which he would be more likely to do if he knew in advance that the property she brought into the marriage would be passed down through her (and her father’s) family line (B. Ketubot 52b). The practical effect of this was to insure that the daughter “inherited” a fair share of the father’s estate, though this was done as a gift rather than as a formal inheritance.
- M. Bava Batra 8:5; B. Bava Batra 133b; Yad, Nachalot 6:11; Shulchan Arukh Choshen Mishpat 282:1; Resp. Maharashdam (15th-cent. Salonika), Choshen Mishpat, no. 311.
- B. Ketubot 53a; Beit Yosef to Tur, Choshen Mishpat 282; Sefer Me’irat Einayim to Shulchan Arukh Choshen Mishpat 282.
- R. Shimeon ben Tzemach Duran (15th-cent. Algiers), Resp. Tashbetz 3:147.
- Resp. Chatam Sofer, Choshen Mishpat, no. 151; Arukh Hashulchan, Choshen Mishpat 282:3.
- B. Mo`ed Katan 17a and Yad, Mamrim 6:9. In general, the commandment “you shall not place a stumbling block before the blind” is understood to forbid us from leading another person into sin unwittingly; see B. Pesachim 22b.If needed, please consult Abbreviations used in CCAR Responsa.