Class #8 - Class Notes

Mitzvah #400 governs distribution of someone’s property when the person dies.  Inheritance law in always complex; much of what the author says and much that we will add will be generalizations that do not reflect all the exceptions and nuances. Although the author provides plenty of information about inheritance law, he also omits several important sub-topics.  (Much of what we will add is based on the Encyclopedia Judaica article on “Succession” and on Dayan I. Grunfeld, The Jewish Law of Inheritance, Feldheim 1987.)

            The source verses for this mitzvah give a list of the relatives who inherit when someone dies, in their order of preference.  In giving a shoresh for this mitzvah the author repeats that God is the source of all of the blessings people have, including material goods and family members.  That gift need not end when someone dies.  Often we are helped to live properly by the influence of our ancestors and our family members.  God extend His blessing by arranging for our worldly goods to go to our relatives when we die.

There are conceptual reasons that make inheritance law complex.  Someone might die without indicating what should happen to his or her property; in that case we need rules to tell us who inherits what.  It is not clear why someone can make a will to determine who inherits, since once the person dies that person no longer owns the property.  If the deceased made a will we can try to follow what the will says.  But that isn’t always easy.  The will may be ambiguous.  We try to do what the deceased wanted but the deceased is no longer able to clarify if we are unsure.  Heirs may suggest different understandings of the will. Usually an heir will suggest an understanding that advantages the heir making the suggestion. The will may include provisions that seem unfair or that are against public policy, and we need to decide if we are prepared to carry out those provisions.  The will may put restrictions on what happens to the property long into the future, and we may not want to force the heirs to keep track of those restrictions through several generations.  We will discuss how some of these issues are handled in halachah.

            Let’s start with intestate succession.  When an adult dies without designating who will inherit after the person dies, we need a set of rules for who inherits.  Based on the source verses, Num. 27: 8 - 11, our author explains who inherits when someone dies.  When an adult man dies:

1.       If he has sons, the sons inherit.  The first born son gets a double share.  (Take the total number of sons and add one, divide the estate by that number, give the first born son two shares and each other son one share.)  If a son died before his father, his descendants, male and female, inherit instead.

2.      If he has no sons, his daughters inherit.  The first born daughter gets the same share as her sisters.  If a daughter died before her father, her descendants, male and female, inherit instead.

3.      If he has no children, his father inherits.

4.      If none of those relatives can inherit, his brothers from the same father inherit.  If one of the brothers is already dead, his descendants inherit instead.

5.      If none of those relatives can inherit, his sisters from the same father inherit.  If one of the sisters is already dead, her descendants inherit instead.

6.      If none of those relatives can inherit, his paternal grandfather inherits.

7.      If that is not possible, his father’s brothers, who share a father with his father, inherit.  As usual, if one of those is already dead, his descendants inherit instead.

8.      If not, his father’s sisters, who share a father with his father, inherit.  If one of the aunts is already dead, her descendants inherit instead.

9.      Etc.  Following this pattern we can eventually locate an heir for almost anyone.

Inheritance works the same way for women, except that a husband inherits his wife although a wife does not inherit her husband.  A mother does not inherit from her son.

            There are some surprises here, most of them having to do with women.  Inheritance goes through the father’s line; relatives through someone’s mother never inherit.  Conspicuously absent from this list are wives and daughters who have brothers.  Hold that thought, we will come back to it.

            The other surprise is that the firstborn son gets a double share.  We have seen other cases of special status of a firstborn:  firstborn animals end up as sacrifices, and sons who are the firstborn of their mothers must be redeemed.  In European history, firstborn sons often inherited everything, leaving nothing for other sons.  Perhaps this is a fairer modification of a system like that.

            Any son from a Jewish mother inherits, even an illegitimate son, even a mamzer, even an idol worshipper.  A father is taken at his word for who is his son and who is his firstborn son.  This is true even though the father is not believed if the father says his son is a mamzer.

            When someone dies intestate the estate vests immediately in the heirs.  But making that work is complex.  First we need to determine exactly what the estate consists of.  There might be land, animals and household goods, all easy to identify.  But there might be things that have been lent out or rented to others.  Others might owe debts to the deceased.  There might be inheritance coming to the deceased, either from an estate that began before the deceased died, or because of someone who died after this deceased.  These different categories of property might be subject to different rules.  For example, our author says the firstborn son only takes a double share of estate property that was in his father’s possession when his father died.  If an inheritance was owed to the father because of a relative who died after the father, or someone owed the father money, the firstborn son does not get a double share.   Nor does the firstborn son get a double share of the increased value if the father’s property increased in value after the father died.  For example, if fruit trees were growing on the father’s land but had not yet developed fruit, the firstborn son would get a double share of the value of the tree at the time the father died, but would not get a double share of the increased value that accrued because the tree developed fruit and that fruit ripened after the father died.  Distinguish that from a case of a tree growing slowly, where the firstborn son does get a double share of the increasing value of the tree.

            Our author does not mention two other obvious issues.  The deceased may have debts and the estate may be liable for those debts.  Someone will have to determine whether the claims made by ostensible creditors are valid.  An heir might claim the deceased was in debt to that heir and the other heirs might dispute that.  If the debts are larger than the estate, someone needs to determine which debts get paid and which don’t.  Someone has to determine which of the estate property goes to pay the debts and which property goes to the heirs.

            Once the scope of the estate has been established and the estate’s debts have been paid, if there is more than one heir someone has to figure out which heir gets which property.                       

            Let’s return to our question about who inherits and who doesn’t.  The rules for inheritance in the Torah and in rabbinic literature are based on very different economic and social assumptions than we live with now.  Recall that halachah assumes that most women are supported by their families, first in their birth family and then in their husband’s family when they marry.  A wife may own property when she enters the marriage. This is not her dowry, but other property that she owns.  Depending on the arrangements between bride and groom, the wife may continue to own that property outright. Or the wife may turn the property over to her husband to manage.  In that case, the profits earned on that property go to the husband but the wife continues to own the property and the property returns to her control when her husband dies.  Also recall that under the ketubah that is part of the wedding ceremony a wife is entitled to a lump sum settlement when the marriage ends, either by divorce or at the death of the husband.  Although the ketubah now is a standard document, in earlier times the provisions of the ketubah were negotiated individually for each couple.  That debt is the first debt owed by the estate.  The rabbis also hold the estate liable to support the wife and unmarried daughters until they die or marry.

            Now let’s see how this plays out in two situations.  Consider a wealthy married man who dies leaving a son, a widow and an unmarried daughter.  The wife retrieves any property she owned outright and brought into the marriage.  The son inherits the father.  But the estate has to pay off the father’s debts.  The first debt to be settled is the ketubah, which in the case of a wealthy family can be very large.  The estate also supports the widow and daughter until they marry, or for the rest of their lives if they do not marry.    If the deceased was wealthy, there is enough money to do all that, making provision for the widow and daughter until they have another means of support, and still leave a substantial estate for the son.

            Now consider how this works is a poor man dies leaving a son, a widow and an unmarried daughter.  Here, the ketubah may not be very large, and the wife may not have brought property to the marriage.  The first claim on the estate is the ketubah, and the son is obliged to support the wife and daughter.  That protects the wife and daughter to the extent possible from the small estate, but that may leave the son with little or nothing.

            If a husband dies leaving a widow and daughters but no sons, the estate will still have to pay the ketubah and return property the wife owned outright, as well as supporting the wife until her death or remarriage.  The daughters inherit what is left.

            So the halachah plays out very differently than one might have thought.  And, as we have seen before, the halachah ends up providing some protection for those most vulnerable.

 

            In American law someone is permitted to make a will that awards his or her property after death. Someone might want to disinherit one of the heirs, give an heir more than the designated share, or give the property to a charity or to someone who is not an heir.  But halachah rejects the notion that a person who has died has any power over property the person owned when alive.  A dead person has no legal power to do anything.  Someone who wants to distribute property in a way different from the intestate succession rules need different mechanism.  That mechanism would require the person to award the property while the person is still alive in a way that follows the normal rules for giving gifts. Although the author clearly says that a living person can do anything with his or her property, the author does not discuss other techniques for accomplishing this. 

            Halachah makes special provision for someone who is gravely ill to gift away his or her property.  Someone who is gravely ill can gift property by making a verbal declaration in front of witnesses.  No formal act of kinyan, transfer of ownership, is needed.  The owner gifts total ownership of the designated property; the owner retains no rights in the property.  That helps keep things clear and reinforces that the testator really believes death is near.  But the gift is considered automatically retracted if the testator recovers.  Of course, most people would rather not wait until the last difficult days of illness to make arrangements, especially since the person’s health might not allow the person to make such a gift at the appropriate moment.

            Someone might also award property much earlier by giving ownership of the property to the beneficiary, either outright or by retaining the right to use and benefit from the property.  Such an award can be revoked only if the possibility of revocation is a condition of the grant from the outset.  A witnessed document and kinyan are required.  This is similar to certain trust arrangements in American law.  But it still does not allow the testator to retain full ownership rights until the testator dies.

            Our author seems not to think that the point of this mitzvah is to make sure that the designated heirs end up with the property of the deceased.  The author says the intestate rules are not meant to keep living people from distributing their property as they wish.  If ownership transfers while the owner is still alive that is permitted and the distribution works even if the property goes to someone who is not an heir.   Once someone dies, however, the property he or she owns vests in the heirs.  If someone tries to circumvent this distribution by trying to leave property as an inheritance to someone who is not an heir the testator is violating this mitzvah and the attempt does not work. Rambam holds the major focus of this mitzvah is on a court that distributes property without following these distribution rules; the court would be violating this mitzvah.    

Someone might try to award his or her property when the person dies by stating who will get the property by using the term “yerushah,” “inheritance.”  The person might say, “When I die, this person should inherit my property,” parallel to the process we are familiar with of making a will.  The general rule is that such a bequest does not work because it violates this mitzvah.  The author mentions the Talmudic opinion of Rabbi Yochanan ben B’rokah who would allow someone to change the allocation of inherited property between heirs at the same level.  So someone could disinherit one son in favor of other sons, or give a larger share to one daughter than to other daughters.  The author says this opinion is generally accepted, except for denying a firstborn son his double share. 

The author seems very interested in the area of future interests, how we handle bequests that go beyond just assigning the property to a specific person.  For example, someone might designate property to go to one person and then to go to another person after the first person dies.  These arrangements can be very complex, and can cause all sorts of complications by delaying clear ownership of the specified property for generations. For example, if the first beneficiary sells the property, can the second beneficiary interfere with the sale?  Can the second beneficiary recover the property from the buyer? Also, the precise language the testator uses can change the outcome.  The author mentions that he has reached his conclusions after extensive study.  This is a very difficult area of law.

Our author says the general rule is that if the testator designates his property to go an heir, any assignment to someone else after that is invalid. So if the testator says “My property to you and after you to someone else,” if the first beneficiary is an heir the heir gets the property outright.  When the heir dies, the property does not go to the second beneficiary, it goes to the heirs of the first beneficiary.

What if a testator says to someone who is an heir, “My property to you and after you to the Temple”? This is just like the first case, but the second beneficiary is the Temple. So it might get the same result:  the property belongs outright to the first beneficiary and the second beneficiary, in this case the Temple, gets nothing. But we have seen that someone who promises a gift to the Temple is obligated to pay up so maybe the Temple ought to get the property.  But the author says that in this case the Temple has no special status.  The heir gets the property outright, and when the heir dies the property goes to his or her heirs.

If the first beneficiary is not an heir, the exact language the testator uses is crucial.

If the testator makes the same bequest, “My property to you and after you to someone else,” and the first beneficiary is not an heir, then the first beneficiary gets the property and the second beneficiary gets whatever of the property is left when the first beneficiary dies.  The first beneficiary has no obligation to try to preserve the property; the first beneficiary can use the property up or give it away or even sell it. 

Let’s say the testator says “My property to you and after you to someone else, and after him to a third person.”  The first beneficiary gets the property, and the second beneficiary gets whatever is left when the first beneficiary dies.  Presumably the third beneficiary gets anything that is left when the second beneficiary dies, although the author does not actually say that.  If the second beneficiary dies while the first beneficiary is still alive, though, the property goes to the heirs of the first beneficiary.  The only claim the third beneficiary has is through the second beneficiary.  If the second beneficiary never gets the property the third beneficiary’s claim is extinguished.

Distinguish those cases from a case where the testator says, “From now [this goes to you] and after you to someone else.” In that case the property belongs to the second beneficiary. The first beneficiary gets any profits on the property as long as the first beneficiary is alive.  If the property is a fruit orchard, the first beneficiary does pretty well.  If the property is a pot, the first beneficiary doesn’t get anything.

Consider another variation.  The testator says, “My property to a first beneficiary and, if he dies, to a second beneficiary.”  The first beneficiary gets the property and the second beneficiary gets nothing.  That is the result because the testator did not says “from now,” as the testator said in the prior case.

The testator might say, “My property to you and after you to me or my heirs.”  Here the testator has not said “from now.”  But the property in this case would revert to the testator or the heirs of the testator.  Therefore we interpret the testator to mean that the first beneficiary only gets the use of the property during the lifetime of the first beneficiary.  The first beneficiary never got ownership of the property.  We assume that’s what the testator meant, but the testator did not say it artfully.  If the first beneficiary sells the property the testator or his or her heirs can recover the property from the buyer. 

The author ends this essay by noting that Ramban would count two additional mitzvot about the double share for a firstborn son.  The author also mentions that inheritance is a very difficult area of halachah, and that the author has omitted many things he might have discussed.  But he adds one of those wonderful encouraging comments to his son.  If the student works hard the student will figure it all out.

This mitzvah applies to men and women everywhere and at all times.  But it is less clear how this mitzvah should influence our behavior under vastly different economic circumstances. There is a long history of rabbinic legislation modifying this regime to match varying conditions.

 One might think that there is a preference for someone’s property to go to the heirs by intestate succession designated by the halachah.  Other authorities might agree, but our author does not take that position.  The prescribed order of succession might have worked well in earlier social and economic circumstances, but it does not seem to meld well with current conditions.  Someone once told me, “If you want your kids to hate each other, the easiest way to do it is to write a will that doesn’t distribute your property equally between the kids.”  Our ketubah is a ritual document not a fiscal contract. 

Several decades ago, when we lived in Toronto, we knew a prominent attorney who handled the legal work for many local rabbis.  We asked him whether those rabbis made wills and what those wills provided.  He told us they all made wills leaving everything to their wives.  Grunfeld’s book on inheritance is an attempt to write a will that would be valid both in British law and in halachah.  He assumes that married men would provide for their wives and would divide their estate equally between their sons and daughters.

Grunfeld summarizes a responsum of Rabbi Moshe Feinstein discussing whether a will made under American law is valid in halachah.  Iggrot Moshe, Even haEzer, ch. 104.  Rabbi Feinstein is not bothered by interpreting the language “I give and bequeath” in the will in two different ways: in American law it means the testator grants the property after death, but in halachah it means the testator grants the property while the testator is still alive but shortly before the testator’s death.  Thus the will is parallel to a gift by the testator while the testator is still alive.  There is no kinyan, as is required for a gift in halachah, but Rabbi Feinstein thinks the fact that secular courts will enforce the provisions of the will can substitute for the kinyan.  But Grunfeld points out that most other authorities would disagree with Rabbi Feinstein.

 

Mitzvot #401 – 404 mandate various communal sacrifices: #401 the two daily olot; #402 the mussaf on Shabbat; #403 the mussaf on the new moon; #404 the mussaf on Shavuot.  In reading these mitzvah/essays we will focus only on what is new to us in these essays.

            The author reminds us of his prior discussions of a shoresh for sacrifices.  The two daily olot correspond to the two meals people eat each day.  We make provision for thanking God through sacrifices at least as often as we provide meals for ourselves.  God wants us to do things that make us worthy of blessing.  God certainly gets no temporal benefit from sacrifices.  God’s share in sacrifices is that people are obeying and therefore making themselves worthy of God’s blessing.  Mussaf sacrifices help reinforce the importance of special days.

            According to our author the mussaf for the new moon helps us focus on the roles of celestial bodies, especially the moon, on the physical world and on human activity.  In medieval theory the world consists of four elements, wind, fire, water and earth, and those elements are subject to the sovereignty of the sun and moon.  The author says everyone know that lots of things work poorly at the beginning of the lunar cycle when the moon is waxing. People avoid bloodletting, beginning journeys by ship, processing flax, and cutting lumber.  We may find the specifics the author identifies as anachronistic.  But we can focus on more modern understandings of the role of the moon, for example on tides and on keeping the axial tilt of the earth stable, as examples of how God’s creation takes care of us in a myriad of ways.

            At the beginning of the essay on daily olot the author says the obligation of sacrifices falls on the beit din, scholars in Torah who are tasked with communal responsibilities.  The actual work of bringing the sacrifices falls to the cohanim.  And if anyone else knew of a problem in bringing the sacrifices and did not resolve that problem although he or she had the power to do so, that person bears some culpability for the failure as well.

            The morning olah was brought as early as possible after the Eastern sky lightened.  But extenuating circumstances might delay it to as late as the fourth hour.  (An hour was calculated by diving the period of daylight into twelve equal units.)  The afternoon olah could be brought after 6 ½ hours. The daily communal olah had to be the last sacrifice brought each day so the cohanim would delay it as long as possible, slaying it at 8 ½ hours and offering it up at 9 ½ hours.  That gave more time of individual sacrifices.  The two olot were identical except for where in the Temple they were slaughtered.

           

 

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