Wills & Halacha – No Need to Compromise on Either!
Simon M. Jackson – Legal Advisor to Torah MiTzion
The Basic Halacha on Succession (Yerusha)
According to Jewish Law, only male offspring are capable of inheriting their father’s estate. The Torah awards women no rights of inheritance as long as there are male heirs in the same class. So, daughters will not inherit if there are sons, and sisters will not inherit if there are brothers. (In tandem, the Rabbis made provision for support and maintenance of unmarried daughters up to the age of physical maturity and for a dowry at the time of their marriage, which could run to as high as 10% of the total assets left by the deceased).
Moreover, when the first born is a male, he is entitled to a double portion – two shares of the tangible assets of the estate.
In our parsha (Bamidbar 27:11), the Torah, after setting forth the halachic procedure for the disposition of an estate, concludes its discussion with the term chukat mishpat. Chukah (statute) implies inalienability, and thus prohibits any change to the order of inheritance as prescribed in the Torah: neither to bequeath a legacy to a person who is not entitled by the Torah to inherit, nor to disinherit a person who the Torah declares is entitled to inherit. In this regard, inheritance differs from the general rule in monetary matters, which states that monetary stipulations are valid (if structured properly), even if they contradict Torah law (kol t’nai she-be’mamon kayam).
The upshot of the above is that a person, according to the strict letter of the law, is unable to distribute his estate to non-halachic heirs, such as a wife or a daughter, or in a way which would deprive his firstborn of his halachic entitlement to a double portion, without violating the Halacha.
Some Possible Solutions
(A) The Gift Approach
The strict Torah laws of inheritance only apply to property owned by a person at the time of his death. However, one can make a gift to anyone at any time he is capable of doing so, before his death. Thus, if a person gave away or otherwise disposed of his property during his lifetime (for example, to his daughters), the Torah’s restrictions limiting his abilities on inheritance would not apply.
In practice, however, the maker of the will may be unable to part with his possessions during his lifetime, which is a drawback of making an outright gift. Moreover, it is not possible for a gift made during his lifetime to be effective after the will-maker’s death – because, according to the Halacha, at the moment of death the title to his possessions vests automatically in his heirs!
The way of getting round this quandary is to draft a legal instrument, which would enable the beneficiary to take immediate title to the property – but, at the same time, would enable the donor to retain the right to all income earned during his lifetime, as well as to revoke the trust whenever he desires. This is known as a “revocable inter-vivos trust.”
The drawback to this method is that the majority of halachic authorities require a formal transfer of title to the property (kinyan) to be binding. However, such a kinyan will only be effective in transferring property which is currently in the donor’s possession at the time of the kinyan. It would have no effect on property yet to be acquired, such property being a matter which is not as yet in existence (davar sh-lo ba le’olam) – see: Bava Metzia 46a, Tur and Shulchan Aruch, Choshen Mishpat 203, 209. Yet a conventional will generally deals with future holdings as well. Thus, equal distribution to children using outright lifetime gifts would be extremely difficult. On a practical level, too, the gift approach has drawbacks. For example, a substantial gift made to a daughter while the parents are alive might generate considerable resentment from the sons.
(B) Creating an Indebtedness (Shtar Chatzi Zachar / Shtar Zachar Shaleim)
Simply put, this method enables a person to draft a secular will, while effectively distributing his estate equally to both male and female heirs. He does so by creating an indebtedness well in excess of the total value of his estate, as leverage to encourage his sons to carry out the terms of his will. Should they fail to do so, the will would require them to pay the full monetary debt to the daughters (or non-firstborn sons). This debt becomes a lien on all of the will-maker’s property – both current and future holdings.
This technique was primarily used to give daughters a half share or full share in one’s estate and is known as shtar chatzi zachar (half share) or shtar zachar shaleim (full share). Such a document was often drawn up and delivered to a daughter at the time of her marriage.
In view of the above halachic problems/challenges, and in light of the above suggested potential solutions, the writer draws up two documents for religious clients interested in making an Israeli Will. The first is a standard, secular will, drafted in Hebrew or English, according to the laws of the State of Israel, tailored to the specific needs of the client – which usually involve distributing each will-maker’s property to the surviving spouse and then to each of his/her children (whether male or female) in equal shares (whether firstborn or otherwise).
The second document constitutes a “Halachic Wills Appendix,” based on a Hebrew document drafted by Rav Zvi Yehuda ben Ya’akov, a Dayan on the Tel-Aviv Regional Rabbinical Court. This document effectively enables the secular will to comply with the requirements of Halacha, combining as it does the elements of the gift approach (for property on which a kinyan can work) and the penalty payment mechanism (in the sum of double the share that each beneficiary would be entitled to receive under the secular will, in the event that the sons do not pay their full monetary obligations to the daughters under the ‘note’ of indebtedness). The “Halachic Wills Appendix” is drafted, as mentioned, in a separate document – which has the added advantage that it need not be brought to the attention of a non-religious judge (who may otherwise be confused at best, particularly by its unusual “indebtedness” provisions) at the time the ordinary, secular will is probated.
Wills & Halacha – why compromise on either?!