(assisted by Martin M. Shenkman, Esq.)
In our last issue, we discussed the need for a method that the will facilitate non-Halachic heirs inheritance of a portion of the estate without violating Halacha. American Poskim in the last few decades have developed a variation of the traditional Shtar Chatzi Zachar document that can accomplish this goal. In this essay, we shall explain the traditional Shtar Chatzi Zachar and its contemporary variation. Once again I thank attorney Martin Shenkman for his assistance in the preparation of this series of essays. I assume sole responsibility for any errors.
The Traditional Shtar Chatzi Zachar
One method of distributing an inheritance to daughters is through a Shtar Chatzi Zachar. The Rama (Even HaEzer 113:2 and Choshen Mishpat 281:7) records that this was the commonly accepted way to provide each daughter with a share in the estate. This involves the father undertaking, at the time of the daughter’s wedding (as part of the dowry provided for the daughter), to pay her a very large sum of money (larger than the expected value of the estate) to be due (Chal) one hour preceding the father's death. This debt passes to the Halachic heirs (i.e. the sons, although the concept could be extended to restructure any stages of the Torah order for Yerushah) and includes a provision voiding the debt if the Halachic heirs present the daughters with a share (e.g. one-half) of the inheritance.
Rav Asher Weiss (in a teleconferenced Shiur from Yerushalayim to Teaneck, under the auspices of Project Ezra) stated that the Maharil (Teshuvot number 88), who mentions writing “documents of inheritance” on behalf of one’s daughters, might be a source in the Rishonim for the Rama’s assertion. Rav Weiss noted that this method is mentioned only by the Rama and not by Rav Yosef Karo (in neither the Shulchan Aruch nor the Beit Yosef), indicating that this was not a widely accepted practice among Sephardic Jews. It would seem to me, though, that there is no reason why Sephardic Jews should refrain from using such a document in the contemporary situation. It could be that Sephardic Jews did not feel a need to facilitate daughters receiving a share in a will, whereas today it is necessary to do so, as we shall discuss in next week’s essay. However, this document was very commonly used among Ashkenazic Jews, as is evidenced by the extensive responsa literature that discusses the Shtar Chatzi Zachar (summarized in the Pitchei Teshuva C.M. 281:8-13).
This technique raises a number of issues. If the debt is made too large, the Shtar may be challenged as an Asmachta (having a condition which is known to have been made without the intent of fulfilling the obligation, see Bava Metzia 66a, 73b and Nedarim 27b). This risk is remedied by inserting a clause stating that the debt was affected with a Kinyan (transaction) in a Beit Din Chashuv, an esteemed Rabbinic Court (Kuntress Midor LeDor pp.14-15 and Pitchei Choshen 8:175). This concept is presented in Shulchan Aruch (C.M. 207:14-15) and explained at length in my Gray Matter (1:13-14).
In terms of applicability to the contemporary American situation, one may ask if creating such a debt creates concern for tax consequences. Rav Feivel Cohen wrote to me that it is Halachically feasible to name a charity, not a daughter, to help address such concerns. Rav J.David Bleich, in his contemporary variation of this Shtar, adds a clause to address this concern that includes the statement, “This instrument shall be regarded as of no effect whatsoever in any proceedings brought before any civil court of competent jurisdiction.” We should note that the fact that the document has no validity in civil law does not detract from its Halachic validity (see Teshuvot Chatam Sofer Orach Chaim 113, Teshuvot Divrei Chaim 2:37 and Rav Zevin’s LeOr HaHalacha p.122). Mechon L’hoyroa (Making a Will the Jewish Way, page 7) advises that the executed Shtar be kept with a third party, an Orthodox Jewish attorney who will store it with a will and/or trust documents and present it only if the Halachic heirs challenge the Halachic validity of the secular will in a Beit Din.
Rav Hershel Schachter (in a Shiur delivered at Yeshiva University) stated that the Shtar Chatzi Zachar does not violate the rule of “Ein Bereirah” (there is no retroactive determination, see Encyclopedia Talmudit 4:216-246 for an explanation) as far as Biblical level obligations are concerned, despite the fact that the size of the share that the daughter will receive will be determined only after the day of death. This is because we apply the rule of Ein Bereirah only regarding the primary obligation, but not regarding the details of the implementation, as explained by the Ran (Nedarim 45b s.v. Rabi Eliezer).
Shtar Shalem Zachar
In addition to the Shtar Chatzi Zachar, there is another common approach. Rav Zalman Nechemia Goldberg notes (Techumin 4:344) that the Ketzot HaChoshen (33:3) refers to use of a Shtar Shalem Zachar, which gives daughters a full share in the inheritance. One may legitimately make use of this mechanism. Indeed, Rav Asher Weiss (in the teleconferenced Shiur from Yerushalayim to Teaneck) related that Rav Akiva Eiger wrote a Shtar Zachar Shalem at his daughter’s wedding to the Chatam Sofer.
Contemporary Variations on the Shtar Chatzi Zachar
In the past few decades, American Poskim have devised a contemporary variation to the traditional Shtar Chatzi Zachar. In our community, a dowry is no longer expected and the Shtar is therefore not executed at the time of the wedding. Rather, a supplement to a secular will is written by the testator which records that a debt was made to a non-Halachic heir that takes effect an hour before death. A stipulation is made that this debt is waived if the Halachic heirs follow the dictates of the secular will. The testator assumes a debt much greater than the expected size of the estate so that the Halachic heirs are motivated to honor the terms of the will in order for the debt to be waived. The debt is created by the testator accepting symbolic consideration, the Kinyan Suddar. A Rav should be involved to insure that this is done properly.
There are at least five alternative versions of how to create such a document. Rav Feivel Cohen presents somewhat lengthy English and Hebrew documents in his Kuntress Midor LeDor (see, though, Pitchei Choshen 8:170-171 who questions many of Rav Cohen’s concerns; Rav Hershel Schachter told me that he thought that the Pitchei Choshen’s comments were correct). A shorter version is presented by the Mechon L’hoyroa in their “Making a Will the Jewish Way”, although they require a separate document be written on behalf of each non-Halachic heir. Rav Bleich has developed his own version as has Rav Mordechai Willig (Chavrusa Kislev 5740; his version is available for download at www.rabbis.org, the website of the Rabbinical Council of America). Rav Hershel Schachter’s ideas regarding this Shtar appear in the Journal of Halacha and Contemporary Society (Spring 1981 pp.130-132). Rav Willig’s version is quite simple and straightforward, and many Rabbanim in the Orthodox community make use of it.
Rav Hershel Schachter has told me a testator merely needs to sign this variation of the Shtar Chatzi Zachar and no further action is required. It takes effect even without the knowledge of the beneficiary of the debt because of the Halachic principle Zachin LeAdam SheLo BeFanav, that one may acquire something beneficial on behalf of another individual even if the latter is unaware of the acquisition (Gittin 11b). The non-Halachic heirs and Halachic heirs also need not be aware of this document, Rav Schachter explains, as everything happens automatically (i.e. the non-Halachic heirs do not receive more than their entitlement according to Halacha because the money is in their hands in order to provide the Halachic heirs relief from the conditional debt). The document attesting to the conditional debt is held in case the Halachic heirs challenge the Halachic validity of the secular will. The document proving the conditional debt will defeat this challenge.
Rav Feivel Cohen (Kuntress Midor LeDor p. 20 in the English section) requires steps be taken to render the secular will tamper-proof according to Halachic standards. None of the other American Poskim who address this issue have such a requirement. First, Poskim have debated for centuries as to whether the standards in non-Jewish courts to render a document tamper-proof are accepted by Halacha (see the two opinions cited in Rama C.M. 68:1 and Aruch HaShulchan C.M. 68:6). Second, the measures taken by American courts are quite extensive and might be acceptable even according to the stricter opinion (see Martin M. Shenkman’s “Estate Planning”, pp.102-103 for details regarding these standards). Moreover, estate planning attorney Martin M. Shenkman told me that some of the measures that Rav Cohen advocates might render the document invalid in civil court. Indeed, Rav Hershel Schachter told me that the precautions to avoid forgery mandated by secular law suffice by Halachic standards as well.
Should a Minor Portion of One’s Estate be Divided According to the Torah Standards?
Pitchei Choshen (8:175 note 2) urges that a significant portion of one’s estate be designated to be distributed in accordance with Torah Law (such as the Bechor receiving a double portion and the daughters not receiving a portion if the testator had sons). Rav Hershel Schachter presented a similar idea in a Shiur he delivered at Yeshiva University. On the other hand, both Rav Feivel Cohen and the Mechon L’hoyroa make no mention of doing so. Rav Cohen wrote to me that in principle he agrees with Rav Schachter and the Pitchei Choshen but that he is concerned that this will cause bitter animosity in families. One might suggest a compromise of designating only a nominal amount, such as one thousand dollars, to be distributed according to the Halacha in order to both recognize the Torah law in regards to Yerushah and preserve family harmony.
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, a person is perfectly permitted to present them with monetary gifts during his lifetime. There are, however, two serious drawbacks to doing so. 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 (Ein Adam Makneh Davar SheLo Ba LaOlam). Thus, one can give to a daughter only that which he already owns, as noted by the Rama (C.M. 281:7). It is therefore difficult to carry out equal distribution to children using outright lifetime gifts, and thus the modern variation of the Shtar Chatzi Zachar should be used. Israeli Poskim advocate making gifts that will take effect an hour before death in order to allow non-Halachic heirs to receive a portion of the will (see Gesher HaChaim 1:37-42 and Rav Shlomo Shaanan’s essay in Techumin 13:319-320). This is not a suggested method for those residing in the United States because of tax implications.
In our next issue we shall (IY”H and B”N) discuss why the Shtar Chatzi Zachar and its contemporary variation do not violate the spirit of Halacha.