(2006/5767)

 (assisted by Martin M. Shenkman, Esq.) 

Seven years ago, Kol Torah published a series of essays on the topic of estate planning and Torah values.  Since then, we have received countless requests for these articles to be republished and made available on the internet.  In addition, I have researched this subject further, discussed it with a number of Rabbanim of eminent stature, and lectured to a wide variety of audiences from whom I have learned a great deal.  Beginning this week, we shall present a series of revised essays on this vital topic.  In this introductory issue, we will discuss the background of the Torah's requirements for inheritance (Yerushah) and some basic Torah values that should serve as guidelines when drafting a will that conforms to both Halacha and the spirit of the Torah.  I thank attorney Martin M. Shenkman for his assistance in the preparation of this series.  I assume the responsibility for any mistakes that might appear in any of the following essays.   

Torah Order of Succession 

The Torah (Bemidbar 27:8-11) outlines the Halachic order of succession: 

If a man dies and has no son, then you shall cause his inheritance to pass to his daughter.  And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father's brothers.  And if his father has no brothers, then you shall give his inheritance to the relative who is closest to him of his family, and he shall inherit it.  This shall be for the children of Israel as a decree of justice (“Chukat Mishpat”), as Hashem commanded Moshe.

Understanding the Torah's Order of Yerushah 

A number of points must be clarified regarding the Torah's order of Yerushah.  The Mishnah (Bava Batra 8:2) explains that the lineal descendants of anyone with priority to succession take precedence.  For example, the grandchild (son of a son) of the deceased has priority over the daughter of the deceased.  If a man dies with no living son, the inheritance passes to any deceased son's lineal male descendants ( the grandsons or great-grandsons of the deceased) and only then to a daughter.

Sons, as stated clearly in the Torah, have the first priority to inherit.  If the deceased was not survived by any sons, his daughters inherit all.  The Mishnah explains that the decedent's father is third in the line of succession, after sons and daughters, even though the father is not explicitly mentioned in the Torah’s list. Thus, if the decedent was not survived by children, his father inherits all.  If the father is not alive, then the decedent's brothers inherit.  If no brothers survive, then the relative who is closest to him inherits.  (See Shulchan Aruch Choshen Mishpat 276 and Pitchei Choshen 8:1 for a thorough description of the Torah's line of succession.) 

The Special Status of the Firstborn (Bechor) 

The Torah (Devarim 21:16-17) commands us to give a first born male a double portion of the estate.  Thus, if the deceased was survived by five sons, the Bechor receives two-sixths of the inheritance, and the other sons each receive one-sixth of the estate.

There are several important exceptions to this seemingly simple Halacha.  Firstly, a son born by Caesarian section does not qualify for the double portion (Bechorot 8:9). In addition, the Mishnah (Bechorot 8:9) teaches that the Bechor is entitled to receive a double share only from assets held by the decedent at the time of his death (“Muchzak”).  The Bechor does not receive a double portion from the contingent assets (“Ra’ui) to which the decedent had a right at the time of death but were not actually held by him (e.g. an unpaid debt).  There is considerable debate concerning the implementation of this rule.  For example, Rav Ovadia Yosef (Teshuvot Yabia Omer 8:C.M. 8) and Rav Yaakov Blau (Pitchei Choshen 8:2:26) rule that money deposited in a bank is considered Ra’ui.  On the other hand, Rav Hershel Schachter reports (in a Shiur delivered at Yeshiva University) that Rav Moshe Feinstein believes that money deposited in a bank is considered to be Muchzak.  A similar dispute exists between Rav Yechezkel Landau (Teshuvot Noda BeYehuda C.M. 1:34) and the Aruch HaShulchan (C.M. 278:13) as to whether government bonds are considered Ra’ui or Muchzak. 

A full presentation of the details concerning the special entitlement of the Bechor appears in Shulchan Aruch Choshen Mishpat 277 and Pitchei Choshen 8:2. 

Spouses 

The husband is heir to his wife's estate and takes precedence over all other heirs.  There is considerable debate whether this Halacha is a Torah law or a Rabbinic enactment  (see Rambam Hilchot Nachalot 1:8 and the comments of the Raavad, Maggid Mishneh and Kesef Mishneh there.)

The wife, in contrast, does not inherit her husband's estate.  She is merely entitled to be supported out of the husband's estate until she remarries or demands payment of her Ketubah (Ketubot 4:21).  This obligation raises an important issue.  Do the common elder law, Medicaid, and nursing home planning in which many families in the United States engage violate this Halachic support requirement?  Elderly parents often give away all of their assets so that state programs will pay nursing home bills and the assets may be preserved for their children.  Since a husband's obligation to support his wife includes medical care, may he engage in this type of planning? 

I posed this question to Rav Feivel Cohen, who responded that this does not contravene the obligation to support one’s wife from one’s estate since the government programs pay for her food and medical care.   

Daughter's Inheritance 

Although a daughter does not inherit if there are sons, each unmarried daughter is entitled to ten percent of the estate to be used for her dowry (Ketubot 6:6, Ketubot 68a, and Shulchan Aruch Even HaEzer 113:1).  Attorney Martin M. Shenkman suggests that this distribution is to be determined net of any estate tax because Dina DeMalchuta Dina, we are bound by the laws of the country in which we reside.  In addition, a daughter is to be supported by the estate until she is betrothed or reaches the age of Bat Mitzvah (Ketubot 4:11).   

Contemporary Wills – Halacha and Torah Values 

The most common method of distribution in our times is for children, sons and daughters, to share equally in the estate and for one’s wife and mother of his children to inherit his estate.  How can one achieve this personal objective without violating the Halachic requirements of Yerushah?  We shall discuss a number of proposed approaches to this challenge, which will help us construct a will that satisfies both the needs of the family and Torah Law.  We should note, however, a few basic points about how to construct a will in harmony with both Halacha and general Torah values. 

Ethical Wills 

Rav Yechiel Michel Tukachinsky, in his classic work Gesher HaChaim, writes that everyone should write an ethical will in addition to writing a will concerning how to distribute one's assets after death.  He cites Bereishit 18:19 as the source for this practice.  This celebrated Pasuk states that Hashem considers Avraham special "because he commands his children and his household after him that they keep the way of Hashem, doing charity and justice."  Moreover, the Ralbag (Melachim 1:2:46) writes that everyone should learn from the example set by Moshe Rabbeinu, Yehoshua and David HaMelech (we may add Yosef to the list), all of whom presented ethical wills before they died.  There is a long tradition among great rabbis, including the Vilna Gaon, Rav Aryeh Levine, and Rav Shlomo Wolbe to follow the example set by these biblical figures.

A will, or preferably a separate personal letter, stating one's Torah vision for his family is a vehicle that can encourage the family and children to follow the Torah lifestyle he wishes for them.  Such a personal communication can be an extraordinarily important benefit for children and other heirs.  The last communication from parent to child should not be only about money.   

Shalom Bayit 

The Rambam (Hilchot Nachalot 6:13), in the midst of presenting detailed Halachot concerning inheritance, adds an ethical statement.  This is surprising because the Rambam's Mishneh Torah is a Halachic code, and ethical statements are almost always confined to specific sections of this work, such as Hilchot Deiot, and the concluding paragraphs of major sections.  Thus, it is quite noteworthy that the Rambam interjects ,"Our rabbis have commanded that one should not treat one child differently than another child even regarding small matters, lest the children come to competition and jealousy, such as what occurred with Yosef and his brothers."  It appears that the Rambam is teaching that maintaining Shalom Bayit should be a prime objective of estate planning. 

Most obviously, one maintains familial harmony by fairly distributing one's assets in the will.  One should take special care to avoid using the will as a tool for revenge. Moreover, a Beit Din might invalidate a will if it is evident that the testator sought to take revenge on a family member (Pachad Yitzchak entry Maaveer Nachala and Techumin 17:301-311).

The clearer the parent's desires concerning the distribution of assets, the less chance there is for fighting among family members.  Pitchei Choshen (8:168-169) urges one to plan his will with extreme care in order to avoid family disputes.  He writes that one should spell out the terms of his will as clearly as possible, vigorously avoiding any ambiguity.  Examples of horrific consequences of an improperly drafted will are presented in Techumin 20:94-99.  This author believes that one should not discuss the disposition of one’s assets with his heirs. The will should serve as the exclusive (and absolutely clear) determinant of the distribution of assets.  Oral instructions create the potential for disharmony as heirs may note discrepancies between the will and the oral instructions. One should also carefully choose the executor of the will based not only on his financial acumen and honesty but also on his ability to resolve conflicts and promote Torah values.  He should be familiar with the unique familial dynamics so he can manage challenges prudently and sensitively. 

Furthermore, if the parent provides a mechanism for deciding delicate issues (such as designating a specific Rav or Beit Din to settle any disputes that may arise, see Teshuvot Tzitz Eliezer 5:29 for an example of such a resolution), the chances for preserving familial harmony will be greater. These issues include many of the topics that we discussed in previous issues (available here), such as transplants, autopsies, end of life health care, truth telling to patients, arrangements for nursing home care and burial arrangements.  One should clarify where he wishes to be buried (i.e., Israel, family plot, etc.).  A person minimizes the chance of fighting about difficult issues if one either states his wishes or provides a specific mechanism to resolve any question that may arise. The need to take these steps is even greater in families in which second marriages have occurred.  Special care must be taken in these situations to maintain Shalom Bayit. 

Attorney Martin M. Shenkman suggests that one consider including a carefully written letter explaining why one chose to distribute the assets in the manner spelled out in the will in an effort to avoid potential familial discord.   

Tzedakah and Truthfulness  

The Chafetz Chaim specifically felt that large charitable gifts should be made in a person’s will (Ahavat Chesed, 3:4). The Gemara (Shabbat 55a) states that truth is “the seal” of Hashem, the emblem by which Hashem is known.  Truthfulness mandates presenting an accurate picture of an estate on any tax filing.  A heroic example of honesty in connection with estates is the story Rav Chanoch Teller (in his work Builders) relates about the great Rav Aharon Kotler. 

Next week, we shall discuss options for disposing of one’s assets to non-Halachic heirs in a manner that does not contradict Halacha.