Previously, we spoke of the need to supplement a secular will to avoid violation of the Halachot of yerushah. Many people ask why these mechanisms do not offend the spirit of Jewish law, given that the halachic heirs do not receive all of the money and property that they are entitled to according to biblical and Talmudic sources. In this chapter, we will attempt to answer this and other related questions.
Ethical Objections to Altering Inheritance
If a man will have two wives, one beloved, one hated, and they bear him sons, the beloved one and the hated one, and the firstborn son is the hated one’s. Then it shall be that on the day that he passes on to his sons whatever will be his, he cannot give the right of the firstborn to the son of the beloved one in place of the son of the hated one, the firstborn (Devarim 12:51-61).
The general lesson of these pesukim is that family members must not permit rivalries or personal preferences to interfere with their obligations and family relationships. For example, a parent should not permit favoritism of one child over another to influence his adherence to Torah law or his behavior toward his children. Chazal caution us against giving even the smallest degree of advantage to one child over the others so as to avoid causing jealousy. This would seem to rule out the acceptability of deviating from the Torah order of yerushah, even when it is technically possible.
A similar conclusion emerges from the Mishnah’s statement (Bava Batra 8:5) that if one gives his assets to others and leaves nothing for his sons to inherit, what he has done is halachically valid, but “Ein ruach chachamim nochah heimenu” (the sages are not pleased with him). In other words, his actions violate the spirit of Halachah.1It should be noted that the term “Ein ruach chachamim nochah heimenu” is not a mild rebuke. The Rashbam (commenting to Bava Batra 133b s.v. Ein) explains this phrase to mean that Chazal are deeply disturbed by someone disinheriting his halachic heirs. The Rashbam’s comments are cited by the Sema (C.M. 282:2) in a halachic context. Although Rabban Shimon ben Gamliel asserts that one who transfers his assets away from misbehaving children should be “remembered for good,” the Gemara (Bava Batra 133b) sides with the authoritative words of Shmuel that one should not engage in “avurei achsanta” (shifting inheritance) even from a bad son to a good son. The Gemara (Ketubot 53a) explains that one cannot know what will become of the “bad” son’s descendants – perhaps they will be righteous and will deserve the financial support of their ancestor. Shmuel’s opinion is codified by the Rambam (Hilchot Nachalot 6:11) and the Shulchan Aruch (C.M. 282). The Sema (282:1) adds that the “bad” son should not be disinherited even if he did not demonstrate proper respect for his father during his lifetime.
When is Disinheritance Permitted?
Even though the Gemara’s reasoning for Shmuel seems to overlook the bad son’s character, Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:50) rules that if the “bad” son has completely abandoned a Torah lifestyle, he may be disinherited. Rav Moshe explains that it is extremely unlikely that a descendant of such an individual will lead a Torah lifestyle.2For further discussion of this issue, see Teshuvot Maharam Schick C.M. 43 and Teshuvot Doveiv Meisharim 1:97.
It is important to note that Rav Moshe penned this responsum in 1965, prior to the emergence of the “ba’al teshuvah movement.” Today, it is possible that a descendant of one who has abandoned a Torah lifestyle will return to the proper path, so Rav Moshe’s ruling might not be applicable. Moreover, Rav Moshe does not actually forbid one to leave assets for a child who has abandoned the Torah. Indeed, in many instances, the child’s alienation from Torah may be deepened if he is disinherited. These matters are complex and vary from case to case. A Rav and a competent attorney should both be consulted if one is faced with such a problem, since both the halachic and the legal issues involved are extremely intricate.
Attorney Martin Shenkman suggests that a more beneficial alternative to disinheriting a child who has abandoned a Torah lifestyle is to establish a trust which, if carefully and properly planned, will reward the child for adhering to Jewish tradition. The trustee, who should be someone the testator trusts to act appropriately, may be given the discretion to allocate the money for many purposes, so that he may choose to expend funds for Yeshiva education, Orthodox summer camps, visits to Israel, and the like. Mr. Shenkman advises that a statement in a will that any child or grandchild who intermarries will be disinherited might not be enforced by a secular court, as it is a violation of secular public policy. Leaving assets in a trust with multiple beneficiaries and appointing trustees who understand one’s concerns and wishes may be a more viable alternative.
This method has been endorsed by several poskim. Rav Ovadia Yosef (Teshuvot Yabia Omer 8 C.M. 10) offers a similar solution. In addition, Rav Ezra Basri (Sefer Hatzava’ot p. 6) writes:
One who realizes that his adult children will act irresponsibly with their money and is concerned that they will waste their inheritance on gambling or some other frivolous activity…should appoint trustees over the money he wishes to bequeath these children to ensure that it is properly invested. The trustees should be instructed to give the children a limited amount of money each month.3Rav Basri cites the Me’iri (Bava Batra 133b) as a source for this ruling.
In all cases, it must be strongly emphasized that a will must not be used as a tool for revenge. The Torah explicitly forbids taking revenge (Vayikra 19:18), and this prohibition applies no less on the deathbed.
Disinheriting Sons in Favor of Daughters
The aforementioned Gemara (Bava Batra 133b) also teaches that it is highly improper to disinherit sons in favor of daughters. Accordingly, it would appear at first glance that the mechanisms to present daughters with a share in the estate described previously should not be used. Although they successfully enable one to avoid violating the letter of the Jewish law, they appear to violate its spirit. This question was in fact raised many centuries ago (see Nachalat Tzvi 12:2).
There are several possible answers to this problem, two of which we shall review. First, the Gemara (Ketubot 53a) explains that one may divert money to a daughter to improve her marriage prospects. Rav Zalman Nechemia Goldberg (Techumin 4:345) adds that this reasoning permits including even a married daughter in a will, because if it is known when she is single that Halacha allows for the possibility that she will be included in the will after she is married, her marriage prospects would be improved. Second, the Ketzot Hachoshen (282:2) cites the Tashbeitz’s ruling (3:741) that the negative attitude Chazal maintained towards disinheriting halachic heirs does not apply if the halachic heirs are provided with a nominal share in the estate.4Interestingly, Rav Ovadia Yosef (Teshuvot Yabia Omer 8 C.M. 9) permits giving a son who studies Torah full-time most of the yerushah, provided he leaves a significant sum to his other sons. Although some authorities disagree (see Teshuvot Chatam Sofer C.M. 151, Pitchei Teshuvah C.M. 282:1, and Pitchei Choshen 8:111), Rav Zalman Nechemia writes that the widespread use of the shtar chatzi zachar throughout the past four centuries indicates that the accepted practice is to follow the opinion of the Tashbeitz and Ketzot Hachoshen.5Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:49) does not recommend following the rulings of the Tashbeitz and the Ketzot Hachoshen. Instead, he counsels leaving the halachic heirs “something significant,” which he believes to be one fifth of the estate. On the other hand, Rav Moshe writes in a second responsum (Teshuvot Igrot Moshe C.M. 2:50) that if one acts in accordance with the Tashbeitz and Ketzot Hachoshen, “One should not say about him that he has acted improperly.” In the latter teshuvah, two of the halachic heirs were left one thousand dollars each (in 1966). Rav Moshe considered this sufficient to satisfy the view of the Tashbeitz and Ketzot Hachoshen. Thus, presenting daughters with a share in the estate through the mechanism of a shtar chatzi zachar or a contemporary variation thereof does not constitute a violation of the spirit of Jewish law.6For a somewhat different approach to this issue, see Rav Feivel Cohen’s Kuntress Midor L’dor (pp. 43-44).
We noted earlier that the Ketzot Hachoshen mentions the option of leaving a daughter a full share in the yerushah and that Rav Akiva Eiger wrote such a shtar for his daughter upon her marriage to the Chatam Sofer. Rav Hershel Schachter, in turn, told me that today one should give his daughters a full share in the yerushah lest there be bitterness and acrimony in the family.7Rav Schachter told me that he is following the lead of Rav Shlomo Zalman Auerbach, who also gave such advice (as reported by Rav Meir Goldvicht). Indeed, Rav Yitzchak Herzog (Techukah L’yisrael Al Pi Hatorah 2:110) records that the famed author Shmuel Yosef (“Shai”) Agnon reports that in pre-war Galicia, a great Chassidic Rebbe died and his sons asserted their halachic right to the entire yerushah, whereupon they received the stern disapproval of the entire regional Jewish community. Rav Yaakov Kaminetzky (cited in Emet L’yaakov Al Shulchan Aruch p. 455) expresses a similar sentiment, stating, “In today’s times, it is proper for the daughters to receive an appropriate share of the estate, and it is not considered avurei achsanta. However, the sons should also receive an appropriate share of the estate.” Rav Yechiel Michel Tukachinsky (Gesher Hachaim 1:41-42) espouses a similar approach. Rav Binyamin Rabinowitz-Teumim (in an essay published in Techukah L’yisrael Al Pi HaTorah 2:224-226) explains that in an age when women are expected to contribute to the financial well-being of their families, daughters also need a share in the yerushah. Thus, there is ample room to validate including one’s daughters in his will in today’s environment despite Chazal’s statements of general disapproval.8For further discussion of avurei achsanta, see Teshuvot Minchat Yitzchak (3:135) and Teshuvot Sheivet Halevi (4:216).
Disinheritance in Favor of Charity
The Rama and later authorities give several different opinions regarding how much of a person’s estate may be designated for charity in place of the halachic heirs. The Rama (Y.D. 249:1) seems to permit one to donate his entire estate to charity. Rav Akiva Eiger (ibid. s.v. Kol), however, cites the view of the She’iltot that one should not divert more than one-third of his estate. The Aruch Hashulchan (Y.D. 249:1) rules that one may leave up to half of his estate to charity, reasoning that one may “take a portion alongside his inheritors – half for himself and half for his heirs.” Arguably, one whose estate is unusually large may leave a much larger percentage of his estate to charity, as the halachic heirs nevertheless will receive a sufficient amount of money. Rav Feivel Cohen, however, wrote to me that even a very wealthy person should follow the Aruch Hashulchan’s reasoning and not give more than half of his estate to tzedakah. One should consult his Rav about this issue.
Generous charitable bequests are encouraged, as they address the needs of the neshamah of the testator. The Gemara (Ketubot 67b) records that Mar Ukva had donated a considerable amount of money during his lifetime. However, prior to his death, he donated half9This is the standard version of the text; other versions give different amounts. of his estate to tzedakah.10This story is the basis of the Aruch Hashulchan’s limit on how much of one’s estate may be reserved for his own neshamah’s welfare. He explained, “I have prepared few provisions for the long trip that I am about to embark on.” Mar Ukva was concerned that he would not have sufficient merit when he entered the World to Come.11This idea is developed at length in the Chafetz Chaim’s work Ahavat Chessed (Inyanei Gemilut Chassadim:14 note 1). Accordingly, Rav Feivel Cohen wrote to me that it is appropriate for a Rav and/or a financial advisor to urge people to leave considerable gifts to tzedakah in their wills. Rav Hershel Schachter (Tradition 29:4:90) cautions, though, that “It should be emphasized that it is prohibited to pressure older people, weak in mind and in body, to bequeath their monies to charities against their wishes.”
Rav Elazar Meir Teitz related to me that his father, Rav Pinchas Teitz, strongly urged his congregants to leave at least ten percent of their estates to charity, and he in fact did so in his own will. It also should be noted that a trust can be established to motivate children to give charity throughout their lives. This issue, like so many others, requires consultation with a Rav.
Conclusion
Whatever mechanism one uses to comply with the Torah requirements of yerushah, it should be handled with care and sensitivity for all people involved, with consideration for fundamental Torah values and with the recognition of the importance of bequeathing some amount to tzedakah.