Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat Lech Lecha

12 Cheshvan 5767

November 3, 2006

Vol.16 No.7

Yerushah and Dina DeMalchuta Dina - Part 1 of 1

by Rabbi Chaim Jachter

(assisted by Martin M. Shenkman, Esq.)

Introduction

In the past issue, we discussed some of the basic Halachot regarding inheritance. We noted that if there are sons, daughters do not inherit and that wives do not inherit their husbands' estate. Today, however, husbands usually wish to leave their estate to their wives and parents wish to bequeath their daughters with an equal share in the Yerushah. How can this be accomplished without violating the Halacha? One cannot simply stipulate that he wants his wife and/or daughters to inherit. The Halacha regards this as an invalid stipulation (Bava Batra 8:5). Although the opinion of Rabi Yehuda that Kol Tenai ShebeMamon Kayam (Bava Metzia 94a and Shulchan Aruch Even HaEzer 38:5), monetary stipulations are (if structured properly) valid even if they contradict Torah law, is accepted, stipulations made in contradiction to the Torah rules of Yerushah (inheritance) are invalid. The Rambam (Hilchot Nachalot 6:1) explains that the Torah (Bemidbar 27:11) describes the rules of inheritance as "Chukat Mishpat", a decree of judgment, meaning that it applies in all circumstances and cannot be overridden by a stipulation.

Thus, we are left in a quandary- how can a person distribute his estate to non-Halachic heirs such as a wife and daughter without violating Halacha? In this issue, we will discuss whether the principle of Dina DeMalchuta Dina, the Halachic obligation to follow the law of the land in which we reside (as codified in the Shulchan Aruch Choshen Mishpat 369), can be invoked to solve this problem.

Dina DeMalchuta Dina: A Ruling of the Rashba

The Gemara in a variety of contexts presents the rule of Dina DeMalchuta Dina, which obligates us to follow civil laws such as paying taxes and traffic laws. However, the rule of Dina DeMalchuta Dina does not apply, generally speaking, to Yerushah. This point is best illustrated by a frequently quoted responsum of the Rashba (6:254).

The Rashba addressed an interesting case. Reuven's (not their real names) daughter, Leah, married Shimon and gave birth to a daughter. Shortly afterward, Leah and her daughter both died. Reuven subsequently claimed, based on the law of the land, that he had the right to the large dowry he had given Leah. Shimon, on the other hand, claimed he had the right to the dowry based on the Halacha that the husband is the primary inheritor of his wife. The Rashba, responding sharply, stated that the Halacha prevails over Dina DeMalchuta Dina in this situation. He writes that Dina DeMalchuta Dina applies only to external matters such as taxes and the functioning of the country, not to internal matters between Jews. The Rashba ruled that if Jews would embrace the civil laws of the countries in which they reside to resolve internal monetary disputes, it would lead to complete abandonment of Talmudic civil law. "In that case," argues the Rashba, "what would become of the holy books of the Mishnah and the Talmud? God forbid, such a thing must never happen in Israel, lest the Torah wrap itself in the sackcloth of mourning."

Rav Moshe Feinstein's Ruling

This responsa of the Rashba is accepted as normative Halacha and is cited by the Beit Yosef (Tur Choshen Mishpat 26 s.v. Katav HaRashba) and the Rama (369:11). Accordingly, Dina DeMalchuta Dina does not override the Halachot governing Yerushah. If one does not take affirmative measures to assure that his estate is distributed in conformity with the Torah's order of inheritance, his heirs as defined by civil law will have violated Halacha. If one dies intestate (without a will), the civil authorities will distribute his estate in accordance with the state laws of intestacy, which almost invariably differ from the laws of the Torah (as noted by Rav Feivel Cohen in Kuntress Midor LeDor, pp.7-8). By not taking the necessary measures, one will cause money to be taken from his Halachic heirs and given to those who are not Halachically entitled to the estate. The Halacha views this as theft (see Rav Akiva Eiger C. M. 26:1).

It is clear from the Rashba that if one dies intestate, Halacha, not civil law, must control the distribution of his assets. Rav Moshe Feinstein, however, argues (Teshuvot Igrot Moshe, Even HaEzer 1:104) that a will drafted in compliance with civil law is Halachically valid and that the heirs as set forth in the will are not guilty of theft even if they do not inherit according to the Halacha. Rav Moshe writes that since a will deals with a gift (bequest) to be made after the death of the testator, it would seem that such a gift is not valid in the eyes of Jewish Law. This is because there is no recognition under Jewish Law of a Kinyan (transfer of title) after death (Gittin 13a), because the asset involved no longer belongs to the testator. Upon death, Halachic heirs inherit immediately. Nevertheless, according to the law of the land, one may transfer property after death even though it no longer belongs to the testator. Rav Moshe states:

It appears, according to my humble opinion, a [secular] will of this kind, which will definitely be put into effect by the civil authorities of the country in which he resides, does not need a Kinyan, for there is no greater Kinyan than this [transfer effectuated by the civil law]. Therefore, since a Kinyan is not necessary, the legatees [of the secular will] are Halachically entitled to the property left to them in the will and not the Halachic heirs. And this is a significant basis for the practice [of observant Jews] in this country [the United States] to rely on these types of [secular] wills.

Critique of Rav Moshe's Opinion

ruling met with much opposition. Dayan Aryeh Leib Grossnass of The London Beth Din wrote a thorough critique of Rav Feinstein's ruling (Teshuvot Lev Aryeh 2:57). The authorities who concur with Dayan Grossnass include Rav Zalman Nechemia Goldberg (Techumin 4:342-344), Rav Feivel Cohen (Kuntress Midor LeDor), Rav Ezra Basri (Dinei Mammanot 3:208-213), Rav Hershel Schachter (presented in a lecture to rabbinical students at Yeshiva University) and Rav Mordechai Willig (personal communication). Furthermore, several classical commentaries disagree with Rav Moshe, including the Chatam Sofer (Teshuvot Chatam Sofer, Choshen Mishpat number 142), Rav Yaakov Ettlinger (Teshuvot Binyan Tzion Hechadashot number 24), and Rav Chaim Ozer Grodzinski (Teshuvot Achiezer 3:34). All of these authorities reject the conclusion of Rav Moshe and would not sanction the use of a secular will without supplements, such as the Shtar Chatzi Zachar that will be discussed in later issues.

Dayan Grossnass cites a passage from the Gemara (Temura 25b) that seems to clearly disprove Rav Moshe's contention. The Gemara teaches that when there is a conflict between an individual's directive and God's directive, God's directive prevails. For example, if one declares that when a first born animal will be born it will be a Korban Olah, Hashem's directive that the animal be designated as a Bechor at birth prevails over this individual's desire. Similarly, Dayan Grossnass argues, if one stipulates that at death one's assets belong to a non-Halachic heir, Hashem's directive that at death the assets belong to the Halachic heir prevails. Rav Hershel Schachter remarked that he finds this proof particularly convincing.

Dayan I. Grunfeld of the London Beth Din presents (The Jewish Law of Inheritance 81-82) another disproof of Rav Moshe Feinstein's theory. He cites the following passage from Sefer HaChinuch (Mitzvah 400):

Hashem teaches that the right of the heir to the hereditary estate is inexorably tied to the estate, and as soon as the individual who transmits the inheritance dies, the right to the inheritance immediately rests on his heir. The relationship of the person who transmits the inheritance to the heir is such as if the bodies of the two persons were glued together, and what emanates from one immediately reaches the other. Hence, Chazal teach that if an individual states that my son shall not inherit me or my daughter shall inherit me in a case where there is a son, or if the testator makes any similar stipulation which contradicts the Jewish law of inheritance, these stipulations are entirely invalid. One cannot uproot the word of Hashem, Who ordained that the Halachic heir inherits the one who transmits the inheritance.

As explained by the Sefer HaChinuch, as soon as a person dies, his Halachic heirs automatically possess title to the inheritance without any interruption. From a Halachic perspective, this appears to preclude civil authorities from making a gift on behalf of the deceased. Since, immediately at the time of death, an estate belongs to the Halachic heirs, a Kinyan cannot be enacted on behalf of the deceased, as the estate no longer belongs to him. Therefore, one cannot empower anyone (not even a governmental authority) to distribute his property in contradiction to Halacha. If an individual signs a secular will (without an effective Halachic supplement), he is effectively directing the civil authorities to improperly take assets from his Halachic heirs.

Conclusion

One causes a violation of Halacha if he does not take steps to insure that his estate is distributed properly. Thus, according to all authorities, one who does not have a valid secular will causes a violation of Halacha because the laws of intestacy (state statutes which govern how assets will be distributed if one does not have a valid will) almost always contradict the Torah's directives for distribution of an inheritance. Furthermore, most Poskim rule that simply drafting and executing a will in accordance with civil law does not avoid this problem. Thus, it is proper for every Jew to have a secular will and, according to most Halachic authorities, take additional steps.

Indeed, Rav Feivel Cohen wrote to me that one is obligated to draft a will (and a supplementary document as we shall discuss in a future issue). He explains that one who fails to do so violates the prohibition of Lifnei Iveir Lo Titein Michshol (the prohibition to facilitate violation of Halacha) even though the prohibition will occur after his death. Indeed, Rav Yitzchak Elchanan Spektor (in a responsum printed in Teshuvot Mateh Levi 13) rules that one must take affirmative action to ensure that one's heirs abide by the Halachot governing inheritance. He notes that Tosafot (Bava Metzia 30b s.v. Afkerah) teach that one must take proactive steps to ensure that others do not violate the prohibition of theft.

Moreover, Rav Feivel Cohen wrote to me that one should write a will considerably before the age of fifty, even though the Chaim UBerachah LeMishmeret Shalom (in his discussion of Tzavaah) writes that the age of fifty is the age when one should write a will. Rav Cohen bases his ruling on the Gemara (Shabbat 153a) that states that one should consider and plan for the possibility that one might die the next day. Rav Cohen notes (Kuntress Midor LeDor p.6) the vital importance for parents of young children to write a will to name appropriate guardians for their children in case of death or incapacity (R"L).

Interestingly, the Chaim UBerachah LeMishmeret Shalom records that Rav Shlomo Kluger (a great authority who lived in the nineteenth century) wrote a will at age fifty and lived to the age of eighty six (which was relatively rare in the pre-modern world). Indeed, Rav Ezra Basri writes (in his Sefer HaTzavaot p.5) that one need not be concerned for Ayin HaRa or "bad Mazal" as a result of writing a will. He writes that, on the contrary, if one's intentions are to "increase peace in the world", it "brings one Mazal".

In the next issue, we will (IY"H and B"N) discuss the impact of Mitzvah LeKayaim Divrei HaMeit, the obligation to carry out the wishes of the deceased, as a possible means to bequeath assets to non-Halachic heirs in a way that does not violate Halacha.