Estate Planning Series Part IV: Yerusha - Mitzva L'Kayeim Divrei HaMeit by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.



            In the previous issue, we demonstrated that almost all authorities concur that it is forbidden to simply establish a secular will that distributes one's estate in a manner that is inconsistent with Halacha.  Almost all authorities agree that the rule of Mitzva L'Kayeim Divrei HaMeit has no impact on this issue.  There is another position sometimes advanced as a means of distributing assets in any manner without violating Halacha, the rule of Mitzva L'Kayeim Divrei HaMeit the Mitzva to carry out the wishes (commands) of the deceased.  But can we rely on this Halachically?


Mitzva L'Kayeim Divrei HaMeit

            The Gemara (Gittin 14b and 40a) states the principle that one must obey the commands of the deceased.  The source for this rule is the episode of Yosef honoring his father Yaakov's command to bury him in the Land of Israel.  The Mordechai (Bava Batra at the conclusion of the eighth chapter) explains that the Gemara intends this rule to mollify the anxieties of the seriously ill, by assuring them that others will honor their instructions should they expire.

            The Shulchan Aruch (Choshen Mishpat 252:2) rules in accordance with the opinion of Rabbeinu Tam (cited in Tosafot Gittin 13a s.v. V'ha) to limit the applicability of the principle of Mitzva L'Kayeim Divrei HaMeit.  Rabbeinu Tam states that this rule only applies to asset transfers in a situation where the donor had deposited assets with a third party before his death.  Although many Rishonim dispute this ruling, the Shulchan Aruch codifies Rabbeinu Tam's view as normative Halacha.

            Thus, the rules of Mitzva L'Kayeim Divrei HaMeit do not apply to post death distributions of assets under a secular last will and testament because the money and property involved deposited with a third party until after death. An attempt to "deposit" assets after death with a third party is ineffective because the Halachic requirements for distribution will have already been triggered.  A commonly used secular estate planning technique, the revocable living trust, may conform with this rule if the trust would be recognized under Halacha as a third party. If so, this might present an effective solution to this dilemma.

            According to the Ran (Gittin 13a) this rule applies only to adults.  Minor heirs are not obligated to honor the requests of the deceased.  Thus, the rule of Mitzva L'Kayeim Divrei HaMeit does not solve the secular will problem when there are minor heirs, even according to those who disagree with Rabbeinu Tam.


Responsa of the Binyan Tzion and Achiezer

            Despite the fact that the Shulchan Aruch accepts the ruling of Rabbeinu Tam as normative, some major Acharonim do not entirely dismiss the dissenting views in the Rishonim.  An individual posed the following question to Rav Yaakov Ettlinger (Teshuvot Binyan Tzion Hechadashot 24): A testator named the questioner as a beneficiary to inherit under a secular will and the civil courts gave him money as stipulated in the will.  The questioner wanted to know if Halacha entitles him to keep the money in light of the fact that he is not a Halachic heir. The questioner/inheritor thought that Halacha would require him to return the bequests to the Halachic heirs. Rav Ettlinger replied that he could keep the money.  Since the questioner is the Muchzak (the one in possession of the object in question), the burden of proof falls upon one who seeks to exact the money from him, i.e., the Torah heirs.  Thus, since many Rishonim (including the Rosh and the Ramban) disagree with Rabbeinu Tam, the questioner may claim Kim Li (literally, "I am abiding by") in accordance with the opinions that rejected the Rabbeinu Tam's conclusion.  Thus, the Muchzak can claim that he has the right under Halacha to retain the bequests made to him under the secular will under the principal that Rabbinic interpretations that Mitzva L'Kayeim Divrei HaMeit applies even to property that the donor did not deposit with a third party.

            Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:34) is inclined to endorse Rav Ettlinger's ruling, but notes the dissent of the Teshuvot Har Ha-mor (number 39) and Teshuvot Chessed L'Avraham (C.M. 43). Rav Chaim Ozer adds the highly significant point that even Rabbeinu Tam concedes that regarding Tzedaka the rule of Mitzva L'Kayeim Divrei HaMeit applies even if the testator did not deposit the money in the hands of a third party.  Rav Chaim Ozer suggests applying the rule of !/*9% -#"&% ,/2*9;& -%$*&) $/* to the Halachot regarding the obligation to honor the orders of the deceased. This means that a verbal promise made to Hashem is the equivalent of handing an object to an ordinary individual. Both are binding and irrevocable. Accordingly, when a testator assigns money in a will to Tzedaka, the Halacha might regard this as the equivalent of him depositing the money in the hands of the charity.


Practical Solutions

            We must emphasize that Rav Ettlinger and Rav Chaim Ozer do not condone LeHatchila (ab initio) sole reliance upon a secular will.  They merely argue that "BeDieved" (post facto) the legatees may keep the money distributed to them in favor of the Halachic heirs.  Accordingly, the principle of Mitzva L'Kayeim Divrei HaMeit does not sanction the use of a secular will alone and cannot be relied upon as a solution to the Halachic requirements for Yerusha.

            One historical solution to this problem involved using the traditional Shtar Chatzi Zachar, discussed in Part Two of this series. The contemporary version of the typical Shtar has the father stipulate that the debt to his daughter is waived if the Halachic heirs follow the dictates of the secular will.  Rav Feivel Cohen has published Hebrew and English language forms of a Shtar Chatzi Zachar in his work on this subject entitled Kuntress Midor L'dor. Others have drafted English language versions of a Shtar Chatzi Zachar, which are simpler than the documents recommended by Rav Feivel Cohen.

            Another manner in which to present daughters a share in the inheritance is to make a gift to one's daughters during one's lifetime.  Although daughters do not inherit, one may present them with monetary gifts during one's lifetime.  There are two serious drawbacks to doing this.  First, a host of personal and practical problems are created.  If substantial gifts are made to the daughters while the parents are alive, considerable resentment from the sons may arise.  Practically, it is difficult to equalize lifetime gifts to the daughter with testamentary bequests to the sons on an after-tax basis.  Secondly, Halacha recognizes a gift as valid only if the donor owned the money or property at the time he made the gift.  According to Halacha, one cannot transfer title of something which he does not yet own or does not yet exist (!*0 !$. /81% $"9 :-! "! -3&-.).  Thus, one can only give to a daughter that which he already owns as noted by the Rama (C.M. 281:7). It is therefore difficult to carry out the typical dispositive intent of equal distribution to children, for example, using outright lifetime gifts.

            A new suggestion may provide a Halachically viable solution to the Yerusha issues in a manner that is consistent with common secular legal and estate planning. This involves establishing a revocable living trust.  A revocable living trust is a contractual arrangement between one's self as the grantor forming the trust, preferably one's self and another person as co-trustees managing the trust, and one's self and his family members as beneficiaries to receive the economic benefits of the trust. This approach to a living trust is fundamentally different from the more simplistic approach of most living trusts in which one would be the sole grantor, trustee and beneficiary until death. The latter approach is less likely to be respected as a valid entity under Halacha. If such a trust can be respected as a legal entity (a third party) by Halacha, if the transfers of one's assets to such a trust can be characterized as lifetime gifts under Halacha, then this commonly used secular planning technique may afford an ideal method of complying with the Torah requirements concerning Yerusha.

            This approach, however, requires that several Halachic issues be addressed:  Can such a trust be drafted so that one's transfer of assets is respected by Halacha?  What of the issue of $"9 :-! "! -3&-.?  To what extent can it be addressed or circumvented by using such a trust?  Does one's right to revoke the trust negate the transfer of assets to the trust under Halachic principles?  These and other issues have been submitted to leading Halachic authorities for consideration.



            Almost all Halachic authorities forbid relying solely upon a secular will.  One must supplement the secular will with a Shtar Chatzi Zachar, perhaps establish a revocable lifetime trust, or take other steps.  One should consult with his Rav about these matters.

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