Estate Planning Series Part III: Yerusha and Dina D'malchuta Dina by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.



            In the past issue, we discussed some of the basic Halachot regarding inheritance.  In this issue we will discuss a key contemporary issue, the impact of the principle of Dina D'malchuta Dina on the laws of inheritance.  Dina D'malchuta Dina is the Halachic obligation to follow the law of the land in which we reside, a topic that is quite controversial.  As will be explained, the principal of Dina D'Malchuta Dina is commonly, but erroneously, relied upon by many as a method of avoiding the Torah's Yerusha requirements.  This unfortunately results in many who believe they are complying with Torah's Yerusha requirements, but are unwittingly violating these Halachot.


Dina D'malchuta Dina: A Ruling of the Rashba

            The Gemara often mentions the rule of Dina D'malchuta Dina and most interpret that we must follow civil laws regarding monetary matters. Although the Halacha obligates us to pay our taxes and honor the laws of the country in which we reside, the rule of Dina D'malchuta Dina does not apply to the rules of inheritance.  This point is best illustrated by a frequently quoted thirteenth century authority responsa penned by the Rashba (6:254).

            The facts for the case addressed by the Rashba are as follows: 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 the right to the large dowry he had given Leah, based on the law of the land.  Shimon, however, claimed he 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 D'malchuta Dina in this situation.  He writes that Dina D'malchuta 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 govern internal matters, 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 Mishna and the Talmud?  God forbid, such a thing must never happen in Israel, lest the Torah wrap itself in the sackcloth of mourning."


Affirmative Action Required to Comply

            This responsa of the Rashba is accepted as normative Halacha and it is cited by the Beit Yosef (Tur Choshen Mishpat 26 s.v. Katav HaRashba) and by the Rama (369:11).  If one does not take affirmative measures to assure that his estate is distributed in conformity with the Torah's order of inheritance, he 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.  (See Rav Feivel Cohen in Kuntress Midor L'dor, 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 which cannot be avoided by drafting a secular will.


Rav Moshe Feinstein's Ruling

            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.

            Rav Moshe explains 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, because the asset involved no longer belongs to the testator.  Upon death Halachic Heirs inherit immediatly.  Nevertheless, according to the law of the land one may transfer property after death even though it no longer belongs to the testator.:

It appears, according to my humble opinion, that 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.  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

            Rav Moshe's ruling aroused great opposition.  Dayan Aryeh Leib Grossnass of The London Beth Din penned 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 L'dor), Rav Ezra Basri ($*1* //&1&; 3:208-213), Rav Hershel Schachter (opinion 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 discussed last week, or one that will be discussed in later issues.]

            Dayan I. Grunfeld of the London Beth Din presents a convincing disproof of Rav Moshe Feinstein's theory (The Jewish Law of Inheritance 81-82).  He cites the following passage from Sefer Hachinuch (Mitzva 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 one dies, his Halachic heirs automatically possess title to the inheritance without any interruption.  From a Halachic perspective, this precludes 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 the deceased.  While an individual is in control of his assets during his lifetime, immediately after death the assets are no longer his.  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.  This is equivalent to one's aiding and abetting a theft from his Halachic heirs.



            One violates 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 violates Halacha because the laws of intestacy (state statutes which govern how assets will be distributed if one does not have a valid will) uniformly contradict the Torah directives for distribution of an inheritance.  Furthermore, most authorities rule that simply drafting and executing a will in accordance with civil law does not avoid this problem.  Thus, it is incumbent upon every Jew to have a secular will and, according to almost all Halachic authorities, take additional steps.

            In the next issue, God willing and Bli Neder, we will discuss the impact of /7&% -8**. $"9* %/; (the Mitzva to carry out the wishes of the deceased) as it affects this issue.  We will also discuss some of the measures that one should take to avoid violating Halacha in the process of estate planning.

Are Women Permitted to Study Gemara? by Rabbi Chaim Jachter

Estate Planning Series Part II: Yerushah - An Overview of The Torah's Instructions for Inheritance; Shtar Chatzi Zachar by Rabbi ChaimJachter and Martin M. Shenkman, Esq.