This concerns yerusha. There are 3 girls and 1 boy who are the children of the mother who passed away recently. The father passed away 18 years ago. I am married to a daughter. The mother and 3 children live in Israel.
There is a law in Israel that all children receive equally not like the Torah says that only the son is the yoresh.
I told the son, the following. If you say that there is no Dina Demalchusa in Israel, then in fact all property should be hefker since nobody thought to make kinyan from hefker. People think that it belongs to them because they paid the kablan or the gov. for the land or apt.
But in fact it should be hefker since the gov. does not own it and can’t sell it . As the Torah says when someone digs in hefker and thinks that he did not need kinyan , then he is not konah.
In this case , I already made the kinyan from hefker many years ago on the apt. of my mother in law. Therefore it is truly all mine. And if you hold that there is Dina Demalchusa, then They control all money matters and have taken it away from the son who was yoresh. Then they gave it to all children equally.
If you say that we hold like the Ramah that they have no say in matters that are not directly affecting the malchus, then even in the matters of kinyanim from hefker they have no say and again I already made the kinyan. Therefore I should certainly be allowed to insist that my wife gets her share in the property. Therefore I want my wife to have the lawyer arrange the Tzav Yerusha according to the Chok Yerusha.
I also say KIm Li that the din is like those who hold there is dina demalchusa in Israel and they control all money matters . I was also told by Rav Mordechai Tendler that he is convinced that this would have been the opinion of Rav Moshe Feinstein to allow the daughter to follow the chok in Israel, since Rav Moshe held there is Dina Damalchusa in Israel.
Please respond as soon as you can, thank you for your help!
Answer:
With regard to the issue of dina de-malchusa in inheritance, the vast majority of poskim write that we do not say dina de-malchusa against Torah law in a private matter, and this is the broadly accepted ruling. See: Shach 357:10; Beis Yosef 26 citing from Rashba; Shach 73:39; among other sources.
However, once secular law gives an inheritance to daughters, some poskim write that the daughter does not have to sign away her inheritance to her brothers. Others write that she does have to sign away her part (because of hashavas aveidah), whereas many write that a compromise should be reached.
If you wish to insist that your wife receive the property, you should therefore do so based on the opinion that she is not obligated to sign away her share. Some write that one can say kim li based on this opinion.
Best wishes.
Sources:
See Penei Moshe 1; Minchas Yitzchak 2:95; 6:170. These sources permit a daughter to refuse signing. Others opine that she has to sign: see Divrei Ge’onim (70:10); Beis Shlomo 108; Nachalas Tzvi 276:1. Those advocating a compromise are Mahariaz Enzil 28, Mishpat Shalom 184:1, and Maharsham 2:15, among others (Divrei Chayim cites a custom on how much to compromise for).
See also Yabia Omer 9, Choshen Mishpat 8
I would like a response to the other part of the question.
If one holds that there is no dina demalchusa in Israel or, on any matters that are not effecting the malchus, then the land in Israel should be considered hefker. Anyone that makes a kinyan should become the owner, since it does not belong to the gov.
In addition anyone that buys a dira , should need to be konah from hefker as well.
Please respond ASAP, thank you.
I want to mention that I spoke with Rav Naftali Nussbaum many years ago about this matter and he told me back then that it could be that the land has a din of Mamon she’ ain lo tovin, which is hefker.
I don’t understand your point. First of all, the majority of poskim agree that there is dina demalchusa even in Israel, and some write that for matters of simply running the country, in which all citizens agree to abide by the law, there is certainly dina demalchusa.
But beyond this, even without dina demalchusa somebody who purchases a house gains ownership even according to Torah law (by paying, or by other means), and I don’t follow why land in Israel should be hefker.
Perhaps you mean to say that the land originally occupied by the Israeli forces should be hefker. This is a long stretch, because the land was “acquired” by means of kibbush, and it is hard to imagine that it should become hefker. Even if we make the assumption, the first private owner that purchased the house gained ownership, and thenceforth I don’t see how the land can return to being hefker.
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