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Halacha and the Conventional
Last Will and Testament

Judah Dick

Halacha and the Conventional Last Will and Testament
Judah Dick

Jacob Adler passed away, leaving an estate of $450,000. He expected that in accordance with Jewish law his wife, Jenny, and Dana, his unmarried daughter, would he provided for from a special fund of $50,000. The remaining funds would be divided into four equal portions. Two would be awarded to Rubin, his oldest child, and one portion each (of $100,000) to Simon and Levi his other two surviving sons.

But Mr. Adler did not leave a written will, so the disposition of his estate will probably be quite different. Instead of his expectations being fulfilled, one-third of his estate will be awarded to his wife and the remaining two-thirds divided equally among his four children in accordance with the State law.

Michael Zoberstein was disappointed with his oldest son, Kenneth, who had become a sculptor. He did not want his handbag business to end up in Kenneth's hands, so Mr. Z. wrote a will leaving him a token inheritance, designating the rest of his estate to be divided equally among his widow, Ruth, his other son, Ralph, and his two sons-in-law, who had joined him in his business.

Mr. Zoberstein's wishes will be carried out by the executor of his will, but failure to adhere to the halachic requirements of disposition of a person's legacy may invalidate such legacy insofar as Jewish law is concerned. Could something have been done to have his wishes implemented without contravening Torah law?

What are Mr. Zoberstein's heirs to do? Are they obligated to follow Torah law in disposition of his funds, giving his eldest son a double portion, etc., or are they required to "harken to the wishes of the deceased"?

Old Dave Samsonoff was an invalid during his last years. Of all his sons and daughters and their children, only Faige, the oldest child of his daughter Sima, devoted an hour every day to keeping him company. He would like to leave her a share of his fortune, but daughters - and surely granddaughters - do not inherit according to Torah law when sons are present.

Mr. Samsonoff would also like to leave several thousand dollars to the yeshiva, where he was founding president. How can this be achieved?

In the following pages we will seek to elucidate the areas where a will written in accordance with secular law may conflict with the dictates of the halacha; furthermore, we will try to explain what the solutions to these conflicts might be, and the possible difficulties of accepting these solutions:

  • How may a person dispose of his assets after death in a manner both in accordance with halacha and civil law?
  • What are the rights of the surviving wife and daughters to the estate of the deceased head of the family?
  • Are there any ways in which a person can write a legal will, modifying the Torah's prescribed disposition of one's estate, without violating Torah law?
  • How inviolable are the rights of the bechor - the first born - to a double portion of the estate?
  • What is the halachic status of wills written according to civil law?

The Basic Rules

The Torah devotes six verses to the laws of inheritance (Bamidbar 27:5-11), setting forth the procedure for disposition of estates:

  • When male offspring exist, they are invariably the exclusive heirs of their father's estate.
  • The Torah awards women no rights of inheritance as long as there are male heirs in the same class. (Daughters do not inherit if there are sons, nor sisters if there are brothers. Also, only paternal relatives can be considered heirs.) 1
  • In the absence of sons, daughters (and their offspring) are exclusive heirs.
  • Children who die before their father are replaced by their qualified heirs.
    When a decedent leaves no children, his father is the exclusive heir to his estate.
    If his father is no longer living, his children (the decedent's paternal brothers) inherit his estate.
  • When the first born is a male, he is entitled to two shares of the tangible assets of the estate, by rule of bechora (progenitor).
    Originally a widow was only entitled to her kesuba of 200 silver pieces. By rabbinical ordinance dating to pre-Talmudic times, her needs and living facilities must be provided for from her husband's estate until the time that she claims the lump sum due under the kesuba, or until she remarries.
  • The Rabbis also made provision for support and maintenance of unmarried daughters (up to physical maturity at the age of 12½), and for a dowry at their time of marriage - which may run as high as ten percent of the total assets left by the decedent.2 But this does not leave options for changes of the type Mr. Zoberstein or Dave Samsonoff had wanted to offer in their wills.

The Torah concludes this discussion with the term chukas mishpat (a statute of judgment). From the use of the word chuka, which implies inalienability, the Rambam derives a maxim that a person cannot change the order of inheritance described in the Torah - neither to bequeath a legacy to a person not entitled to inherit, nor to disinherit a person entitled to inherit. In this respect, inheritance differs from the general rule in monetary matters, which allows people to stipulate any conditions or rules of conduct of business they choose (kol tenai shebemamon kayom) 3. The only modification permitted by the halacha is to provide a greater share, or even one's complete estate, to any of the persons entitled to inherit, even though this would disinherit others in the same class, providing that a first-born (bechor) is not deprived of his right to a double share.4

The Sages were generally not in favor of any disinheritance or diminution of inheritance among one's children, even in favor of one child who is a Torah scholar over another who does not conduct himself properly, and they counseled against participation in any such disposition of assets.5

So the problem remains: How can a man direct the way his assets will be distributed after he has died - at a time when he no longer "owns" his possessions?

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