(2006/5767)
(assisted by Martin M. Shenkman, Esq.)
In several prior articles, 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, as 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 essay, we will attempt to answer this and other related questions. Once again I thank attorney Martin Shenkman for his assistance in the preparation of this series. I bear sole responsibility for any errors that might appear in any of these articles.
The Torah Order for Yerushah 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 12:51-61).
The general lesson in these Pesukim 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 to 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 so as to avoid causing jealousy, as we discussed in the first part of this series
Talmudic Background
The Mishnah 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 “Ein Ruach Chachamim Nochah Heimenu” (the spirit of the sages is not pleased by him). In other words, 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 good.”
The Gemara (Bava Batra 133b) indicates that the Halacha follows the first opinion. The Gemara presents the authoritative words of Shemuel that one should not engage in “Avurei Achsanta” (disinheriting the Halachic heirs) even from a bad son to a good son. This opinion is codified by the Rambam (Hilchot Nachalot 7:11) and Shulchan Aruch (Choshen Mishpat 282). It 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 profoundly disturbed by someone disinheriting their Halachic heirs. The Rashbam's comments are cited by the Sema (C.M. 282:2), 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 Sema (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 “bad” 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 (for further discussion of this issue see Teshuvot Maharam Schick C.M. 43 and Teshuvot Doveiv Meisharim 1:97).
It should be noted that Rav Moshe penned this responsum in 1965, prior to the emergence of the "Baal Teshuva movement." Today, it is not so unlikely that a descendant of one who has abandoned a Torah lifestyle will return to the proper path. Thus, Rav Moshe's ruling may no longer be applicable. Moreover, Rav Moshe does not absolutely forbid one to leave assets for a child who has abandoned the Torah. Indeed, in many instances a 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 competent attorney should both be consulted if one is faced with this problem due to 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 visits to Israel. 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 might not be enforced by a secular court, as it is a violation of (secular) public policy. In such cases, leaving assets in a trust with multiple beneficiaries and appointing trustees who understand your concerns and wishes may be a more viable alternative. Rav Ovadia Yosef (Teshuvot Yabia Omer 8:C.M. 10) offers a similar approach. In addition, Rav Ezra Basri (Sefer HaTzavaot 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 insure that it is properly invested. The trustees should be instructed to give the children a limited amount of money each month.” Rav Basri cites the Meiri (Bava Batra 134) 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 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 the previous articles 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 in fact raised many centuries ago (see Nachalat Tzvi 12:2).
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 bequeathing money to a married daughter as well, because a woman's marriage prospects are greater if it is possible that she will be willed a share in her father’s estate after marriage. Second, the Ketzot HaChoshen (282:2) cites the Tashbetz (3:741), who rules 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, 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 Tashbetz as cited in the Ketzot.
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. For a somewhat different approach to this issue, see Rav Feivel Cohen’s Kuntress Midor LeDor (pp. 43-44).
We noted last week that the Ketzot mentions the option of leaving a daughter a full share in the Yerushah and that Rav Asher Weiss reported that Rav Akiva Eiger wrote a Shtar Shalem Zachar 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. Likewise, Rav Yitzchak Herzog (Techukah LeYisrael Al Pi HaTorah 2:110) records that the famed author Shemuel Yosef Agnon told him that in pre-war Galicia, a great Chassidic Rebbe died and his sons asserted their Halachic right to the entire Yerushah, to the stern disapproval of the entire Jewish community in the region. Rav Yaakov Kaminetzky (cited in Emet LeYaakov 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 Michal Tukachinsky (Gesher HaChaim 1:41-42) espouses a similar approach. Rav Binyamin Rabinowitz-Teumim (in an essay published in Rav Herzog’s Techukah LeYisrael 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. This is not the ideal, as the Torah would prefer that the women not be burdened with financial responsibilities. Interestingly, 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.
Disinheritance in Favor of Charity
The Rama and later authorities differ regarding how much of a person’s estate may be designated for charity as opposed to the Halachic heirs. The Rama (Shulchan Aruch Yoreh Deah 942:1) 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 She'iltot that one should not divert more than one-third of his estate to charity. The Aruch HaShulchan (Y.D. 249:1) rules that one may leave up to 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 (following the example set by Warren Buffet – see Kiddushin 31a that Jews should draw a Kal VaChomer from the actions of Dama ben Netina). Rav Feivel Cohen, though, wrote to me that even a very wealthy person should follow the Aruch HaShulchan and not give more than half of his estate to Tzedakah following the reasoning presented in the Aruch HaShulchan. One should consult his Rav regarding about this issue.
Generous charitable bequests are encouraged to 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 (according to the standard version of the text) half of his estate to Tzedakah. 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, as he was about to enter the world to come. This idea is developed at length in the Chafetz Chaim’s work Ahavat Chessed Inyanei Gemilut Chassadim in the footnotes. Accordingly, Rav Feivel Cohen wrote to me that it is appropriate for Rabbanim and financial advisors to urge people to leave considerable gifts to Tzedakah in their will. Rav Hershel Schachter (Tradition 29:4 p.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 told this author that his father Rav Pinchas Teitz zt”l strongly urged his congregants to leave at least ten percent of their estates 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 and attorney about this issue.
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 of fundamental Torah values and recognition of the importance, if not obligation, of bequeathing something to Tzedakah.
Next week (IY”H and B”N), we will discuss the issue of living wills and other health care matters.