Yerusha - Disinheritance - Part 5 by Rabbi Howard Jachter and Martin M. Shenkman, Esq.

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Introduction

            In several prior articles we spoke of the need to supplement a secular will to avoid violating the Halachot regarding inheritance.  Many people ask the following question: Don't these mechanisms offend the spirit of Jewish Law, as the Halachic heirs do not receive the money and property that they are entitled to according to biblical and Talmudic sources?

            In this article, we will attempt to answer this important question.

 

The Torah Order for Yerusha and Human Nature

 

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 causes his sons to inherit whatever will be his, he cannot give the right of the firstborn to the son of the beloved one ahead of the son of the hated one, the firstborn (Devarim 21:15-16).

            The general lesson in these Pesukim is the Torah's requirements for Yerusha, inheritance.  The more subtle, and in many ways perhaps more profound, lesson is that family members must not permit rivalries or animosities to interfere with their obligations and family relationships.  For example, a parent should not permit favoritism of one child over another influence his following 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 to avoid causing jealousy (Tur Choshen Mishpat, 282; Bava Batra 133b).

            The Torah's understanding and insight into human behavior is unequalled.  Thousands of years before any legal system responded to the many disputes over inheritance by enacting laws to distribute property, the Torah recognized the tremendous damage to family relationships which fights over money could, cause. To prevent this disharmony, according to all authorities, one can make gifts prior to death. Perhaps this is one reason as to why the Torah, generally speaking, did not restrict transfers of property through gifts while one is alive.  Thus, during one's lifetime one may give away assets in a manner consistent with fundamental Torah values of preserving Shalom Bayit.  However, if one fails to distribute assets this way prior to death, then the distribution order provided by Torah is required. If one fails to act, the mandated distributions of Torah prevent the arguments that were so common in non-Jewish society prior to the existence of intestacy statutes.  Whether or not we understand the purposes of the Yerusha distributions is secondary to Hashem's command and the positive impact they have had and the moral lessons they continue to teach.

 

Talmudic Background

            The Mishna in Bava Batra (8:5) states that if one gives his assets to others and leaves nothing for his sons to inherit, what he has done is halachically valid but !*& 9&( (,/*. 1(% %*/1& (the spirit of the sages is not pleased by him).  His actions violate the spirit of the Jewish Law.  However, Rabban Shimon ben Gamliel says that if one's children were not acting properly, and as a result he transferred all of his assets to others, he should be remembered for the good.

            The Gemara (Bava Batra 133b) indicates that the Halacha follows the first opinion. The Gemara presents the authoritative words of Shmuel that one should not engage in 3"&9* !(21;! (disinheriting the halachic heirs) even from a bad son to a good son.  This opinion is codified as authoritative by the Rambam (Hilchot Nachalot 7:11) and Shulchan Aruch (Choshen Mishpat 282). It should be noted that the term !*0 9&( (,/*. 1(% %*/1& is not a mild rebuke.  The Rashbam (commenting to Bava Batra 13b s.v. Ein) explains this phrase to mean that the sages are profoundly disturbed by someone disinheriting their Halachic heirs. The Rashbam's comments are cited as authoritative by the Sma C.M. 282:2 (The Sma is one of the premier commentaries to the Choshen Mishpat section of the Shulchan Aruch.)

 

When is Disinheritance Permitted?

            As we have mentioned, the Gemara specifically mentions that one should not disinherit a "bad" son in favor of a "good" son. The reason given is that one does not know what will become of the "bad" son's descendants. Perhaps they will be righteous and will deserve the financial support of their ancestor. The Sma (282:1) adds that the "bad" son should not be disinherited even if the he did not demonstrate proper respect for his father during his lifetime. Nevertheless, Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:50) rules that if the son has completely abandoned a Torah lifestyle, he may be disinherited. Rav Moshe explains that in such a situation it is highly unlikely that a descendant of such an individual will lead a Torah lifestyle.

             It should be noted that Rav Moshe penned this responsa in 1965 prior to the emergence of the "Teshuva movement." Today it is not unlikely that a descendant of one who has abandoned a Torah lifestyle will return to the path of Torah. Thus, Rav Moshe's ruling may no longer be applicable. Moreover, Rav Moshe does not forbid one to leave assets for a child who has abandoned the Torah. Indeed, in many instances you may deepen a chid's alienation from Torah if you disinherit him. 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 this issue because of the complexity of both the Halachic and legal issues involved.

            An 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 may be given the discretion to allocate money for many purposes, so that he may choose to expend funds to pay for Yeshiva education, Orthodox summer camps, and charitable distribution.  This must be drafted in a manner which avoids religious dictates which could be overturned by a secular court if the affected child were to challenge the will.  Similarly, a statement in a will that any child or grandchild who intermarries will be disinherited may not be enforced by a secular court, as it is a violation of [secular] public policy.  In such cases leaving assets in trust with multiple beneficiaries and appointing trustees who understand your concerns and wishes may be a more viable alternative.

            In all cases, one point must be strongly emphasized. A will must not be used as a tool for revenge. The Torah specifically forbids taking revenge (Vayikra 19:18).

 

Disinheriting Sons in Favor of Daughters

            The aforementioned Gemara (Bava Batra 133b) 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 in last week's article should not be used.  Although they successfully enable one to avoid violating the letter of the Jewish law, they appear to violate the spirit of the law.  This question was raised many centuries ago  (see Nachalat Tzvi 21:2).

            There are several possible answers to this problem, two of which will be reviewed here. 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 applies to a married daughter as well, because a woman's marriage prospects are greater if it is possible that she would be willed a share in her fathers estate after marriage.  Second, the Ketzot Hachoshen (282:2) cites the Tashbetz (3:147) that the negative attitude Chazal maintained against disinheriting Halachic heirs does not apply if the Halachic heirs are provided with a significant share in the estate.  Although some authorities disagree with this ruling (see Teshuvot Chatam Sofer C.M. 151 and Pitchei Teshuvah C.M. 282:1), 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 Tashbetz as cited in the Ketzot.  Thus, presenting daughters with a share in the estate through the mechanism of a Shtar Chatzi Zachar does not constitute a violation of the spirit of Jewish law.  For a somewhat different approach to this issue see Rav Feivel Cohen, Kuntress Midor L'dor, pages 34-41.

 

Disinheritance in Favor of Charity

            The Rama and later authorities differ regarding how much of one's estate may be designated for charity instead of the halachic heirs.  The Rama (Shulchan Aruch Yoreh Deah 249:1) seems to permit one to donate his entire estate to charity.  Rav Akiva Eiger (ad locum s.v. kol), however, cites the view of the Sh'iltot that one should divert no more than one-third of his estate to charity as authoritative.  The Aruch Hashulchan (Y.D. 249:1) rules that one may leave up to one-half of his estate to charity.  It is possible that if the estate is unusually large one may leave a much larger percentage of his estate to charity, as the Halachic heirs will nevertheless receive a sufficient amount of money.  One should consult his Rav regarding which opinion one should follow.  However, one pre-eminent Halachic authority has advised us orally that unlimited amounts may be donated to Torah Academy of Bergen County.

            All of these issues become extremely complex in light of the many sophisticated charitable giving techniques available today, such as charitable lead trusts, charitable remainder trust, charitable giving combined with insurance trusts to replace the assets given, etc. While these techniques can provide valuable opportunities to benefit charities, a host of Halachic issues are raised in their implementation.  Ribit (interest) issues may have to be addressed. If the revocable living trust described above is not to be recognized by Halacha, what of the charitable remainder trust which provides for distributions back to the donor?

            Rav Elazar Meir Teitz told this author that his father Rav Pinchas Teitz strongly urged his congregants to leave at least ten percent of their estate to charity.  Rav Elazar Meir added that his father did so in his own will.  It also should be noted that a trust can be established that will motivate children to give charity throughout their lives   One should consult his Rav about this issue.

 

Conclusion

            Whatever mechanism one uses to address his compliance with the Torah requirements of Yerusha, it should be handled with care and sensitivity for all people involved, with consideration of fundamental Torah values, and with recognition of the importance, if not obligation, to bequeath something to Tzedaka.

            Next week, God willing and Bli Neder, we will discuss the issues of living wills and other health care matters.

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