The Basic Halacha on Succession (Yerusha)
According to Halacha, male offspring will exclusively inherit 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 two shares of the tangible assets of the estate.
The Torah (Bamidbar 27:11), after setting forth the halachic procedure for the disposition of an estate, concludes its discussion with the term chukat mishpat. Chuka (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, and 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 to be made during his lifetime to be effective after the testator’s death – because 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.” A secular will could thus provide: “All of the rights and gifts granted according to this Will shall be given to the beneficiaries in the Will according to the Halacha, namely by way of gift, the title/principal now and the benefit/interest proximate to my death, and all of the stipulations and provisions mentioned in this Will shall have the same legality as stipulations and provisions that are valid according to the Halacha, in the most effective manner, as well as according to the laws of the land.”
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 testator 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 testator’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 solutions, the writer drafts for clients, at the time of drafting a secular will in accordance with the law of the State of Israel, at no extra charge, a “Halachic Wills Appendix.” This document was created by Rav Zvi Yehuda ben Ya’akov, a dayan on the Tel-Aviv Regional Rabbinical Court. In the writer’s eyes, this document has the advantage of enabling a secular will to be made, according to all the strictures of the “law of the land,” while tailoring the provisions of this will to the requirements of Halacha.
The “Halachic Wills Appendix” is actually a separate document – which thus has the added advantage that it need not be brought to the attention of a non-religious judge (who may otherwise be confused, particularly by its “indebtedness” provisions) at the time the will is probated. At the same time, it 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).
For further reading:
(1) Halacha and the Conventional Last Will and Testament, by Rabbi Judah Dick: http://www.jlaw.com/Articles/last_will_and_testament1.html
(2) Yerushah and Dina DeMalchuta Dina, by Rav Chaim Jachter: http://koltorah.org/ravj/Yerushah_and_Dina_DeMalchuta_Dina_1.html
(3) Yerushah – Shtar Chatzi Zachar and its Contemporary Variation, by Rabbi Chaim Jachter: http://koltorah.org/ravj/Yerushah_-_Shtar_Chatzi_Zachar_and_its_Contemporary_Variation_1.html
(4) Various Halachic Wills (in Hebrew) on the “Din Torah” website of the Mishpetei Eretz Institute for Halacha and Law, including the Halachic Wills Appendix of Dayan Zvi Yehuda ben Ya’akov referred to in the above article: http://www.dintora.org/Innerpage.asp?ChildID=308