Halachic Problems of Writing a Tzavaah

On the face of it, writing a tzavaah appears to violate a basic tenet of halachah.

The Mishnah (Bava Basra 133b) teaches: “One who bequeaths his possessions to others, his deed is valid, but the spirit of the wise is not compliant with him.”

This is ruled by the Shulchan Aruch (Choshen Mishpat 282). In fact, Chazal viewed the issue with such gravity that Shmuel proclaimed that one should not even be a party (such as signing on a document) to the transferral of  an inheritance from someone’s sons. In fact, one should not even be present where such a thing is done (Kesubos 53A, Bava Basro 133B).

Although the wording of the Mishnah, which refers to the “spirit of the wise,” appears to imply that no actual prohibition is involved, Poskim treat the matter with the severity of an actual issur. The Rosh (Kelal 85 no. 3), for instance, writes that one who transfers an inheritance from his sons is considered to have perpetrated an aveirah. This is echoed by the Rashbam (Bava Basra ibid), and finds a source in the Yerushalmi (Bava Basra 13:6), which applies a Torah curse to somebody who transfers an inheritance.

The halachah thus dictates that when somebody deposits an amount of money before his death, and instructs the trustee to do the best thing possible with it, the money should be given out according to Torah rules of inheritance: The “best thing possible” is defined by Torah principles of inheritance (Rema, Choshen Mishpat, 252:2), and in the absence of other instructions these should certainly be followed. This usually means that sons, assuming there are any, inherit the entire estate, and the first-born son (where applicable) receives twice the share of the others.

This ruling seems contrary to the common practice of writing a tzavaah which involves a deviation from Torah law of inheritance.

Precedents for Writing a Tzavaah

However, we find several precedents, both in rulings of Poskim and in rabbinic enactments, for writing a tzavaah that runs contrary to the inheritance principles of Torah law.

One of the first sources that demonstrate flexibility in matters of inheritance is the early custom of writing a shtar chatzi zachar, which literally means a “half-male document.”

Although this concept is no longer common knowledge, writing such a  document on behalf of a person’s daughters was the widespread custom for a number of centuries, stretching from as long as six or seven hundred years ago. The idea is already mentioned in the responsa of Maharil (of the late fourteenth century, no. 88), Maharik (fifteenth century, no. 13), and Mahari Weil (no. 16 and 27), and it was in common use up until the first half of the Twentieth Century.

This document, which was traditionally a type of dowry, bestows the status of “half a son” on a parent’s daughters. Although according to Torah law daughters in the presence of sons receive no inheritance, the document guarantees them a half of each brother’s share in the inheritance. If each brother receives $1000, a daughter possessing a shtar chotzi zochor will receive $500. The halachic mechanism by which the daughter is promised half a son’s inheritance is somewhat involved, and will not be discussed in the present article. But why was the custom initiated?

In halachic literature we find a number of reasons a daughter should be given part of an inheritance, in spite of this not conforming to the Torah principles of inheritance. One given reason is simply as a dowry for the daughter’s marriage: Giving a daughter a respectable part of the estate makes her a more attractive candidate to potential husbands (Maharam Mintz 47). Marrying off a child is a positive mitzvah, and it therefore defers the negative nature of going against Torah inheritance principles.

Another reason is to generate a special fondness between the daughter and her future husband (Nachalas Shivah 21:7). A further reason is that the inheritance is given in exchange for the tosefes kesubah (an extra sum of money that the groom promises his bride).

The question, however, is how this is permitted: Surely giving a daughter a share in the inheritance contravenes the Torah principles of inheritance law?

Halachic Permission to Write a Tzavaah

Many reasons have been offered in response to this question (see Mishpat Ha-Tzavaah, where eight reasons are outlined). We will mention the two main reasons presented by Poskim:

  1. The transfer is only partial. Although part of the estate is transferred, part of the estate remains, to which the Torah law of inheritance fully applies. Because the laws of Torah inheritance will not be entirely circumvented, no prohibition is transgressed.

Bequeathing part of the estate to daughters limits the possessions to which Torah law will apply, but does not uproot Torah law altogether (see Maharshal 49; Tashbatz 3:147; Tzemach Tzedek 95; Nachalas Shivah 21:10; see, however, Chasam Sofer, Choshen Mishpat 151). It is noteworthy that Rav Moshe Feinstein (Iggros Moshe, Choshen Mishpat Vol. 2, nos. 49-50) recommends leaving a significant amount (such as one fifth of the estate; he mentions in one of the teshuvos that $1,000 is sufficient) for which the Torah laws of inheritance will apply.

  1. Another reason for leniency mentioned by Poskim is the fact that properties are not transferred by means of a tzavaah as an inheritance, but as a matnas chayim – a gift given during a person’s lifetime.

According to numerous authorities, the prohibition against transferring an estate (or part thereof) from Torah inheritors only applies when the estate is transferred as an alternative inheritance by means of a matnas shechiv mera or yerushah (mechanisms that transfer the estate at the time of death). It is forbidden to cause somebody to inherit one’s estate in the place of Torah inheritors. If, however, the estate is given away as a gift during a person’s lifetime, no prohibition applies, because a gift during one’s lifetime does not compete with Torah inheritance (just as it is permitted to give money or property as a gift to anybody one wishes to).

Other authorities reject this reasoning because of the intention behind the lifetime gift: Since the gift is being utilized to circumvent Torah law, it remains a prohibited deviation from Torah inheritance law (see Machaneh Yehudah, Choshen Mishpat 282; Chasam Sofer, Choshen Mishpat 151).

These are the two major reasons given by Poskim to permit a person to allocate his property according to his wishes. Today, we might add a third reason: minhag Yisrael.

It has become the common custom, prevalent among Jews of all denominations, to write a tzavaah. The custom of Israel, unless obviously based on an error, has halachic significance (see Shita Mekubetzes, Berachos 36b), and the fact that everybody does it is not to be ignored.

Why a tzavaah should be written

Aside from giving a daughter a respectable dowry, which is usually achieved nowadays by alternative means, Poskim mention a number of legitimate reasons justifying the transfer of property by means of a tzavaah:

  • Charity. In spite of the consequent loss to Torah inheritors, some Poskim mention that it is commendable practice to bequeath money to charity from one’s estate (Shulchan Aruch Ha-Rav, Mechirah 8; Aruch Hashulchan, Choshen Mishpat 282); Vayeishev Moshe 2:13; Gesher Hachaim Vol. 1, Chap. 1; Iggros Moshe, Choshen Mishpat Vol. 2, no. 50). If a daughter is not doing well financially, but the sons are doing just fine, this is a good reason to transfer some of the estate to the daughter.
  • A wife’s inheritance. A further reason for writing a tzavaah is giving a wife a greater portion than she would receive according to Torah law. In Torah inheritance law, a wife does not actually inherit her husband’s estate. Instead, children who inherit their father are obligated to tend to her needs. For obvious reasons, some prefer to give their wives financial autonomy by leaving them part of their estate. A prominent will that gave the estate to the deceased’s wife was that of the Sedei Chemed.
  • Recompense. Poskim mention a particular leniency in bequeathing possessions beyond Torah inheritance when the benefactor feels an obligation to recompense somebody to whom he feels indebted (see Beis Dovid 137; Tzemach Tzedek, Choshen Mishpat 62; Harei Besamim 129). This factor is often relevant in giving particular possessions to specific individuals.
  • Avoiding disputes. Although it is scarcely mentioned by Poskim, one of the primary motives for writing a tzavaah today is the desire to avoid family rifts. In the absence of a clear tzavaah instructing how a person’s property should be divided, even the closest families are liable to experience discomfort at best, and sharp disputes at worst. Of all issues that batei din are frequently presented with, matters of inheritance are often the most emotional, bringing out strong and bitter feelings from all sides involved. Gadol ha-ShalomShalom is great, and if a tzavaah can bring harmony and avoid discord, then this is certainly a worthy reason to write one.

Because of these issues, and because of factors that vary from person to person, only a small minority of people today leave their entire estate for the application of Torah law. Writing a tzavaah has become commonplace, and as we have seen, it has a well-established tradition among halachic authorities.

Clear and Binding

The last reason mentioned above – the desire to avoid disputes – brings us to an important point. It is interesting to note that according to the Midrash, the very first machlokes that the world knew flared up concerning inheritance: Kayin and Hevel argued over who would inherit the world (see Midrash Tanchuma, Bereishis 9; Bereishis Rabbah 22:16).

In order for a tzavaah to ensure that no disputes will arise between potential inheritors, the tzavaah must be binding. However, the resolve to write a tzavaah, and the achievement of a binding tzavaah whose validity is undisputed, are quite distinct.

However clear the intention of the deceased, a tzavaah that is not halachically binding is liable to be disputed by one or more of the parties involved. It is therefore of great importance that somebody writing a tzavaah ensure that his instructions are anchored in halachic mechanisms that cannot be undermined.

There are two factors that are essential to ensure that the instructions left in a tzavaah will be fully implemented. The first, as we have mentioned, is that the tzavaah must be fully binding, leaving no halachic loopholes that can be exploited. The second is clarity. The wording of the tzavaah must leave no room for disputing the precise intention of the writer.

Following Instructions of the Deceased

In numerous places the Gemara (see Gittin 14-15) notes, “It is a mitzvah to follow the instructions of the deceased.” Based on this halachah, which the Beis Yosef (Choshen Mishpat 252) writes is enforced by beis din, the need for a tzavaah may be questioned. Surely, a late parent’s instructions are binding on his children and other inheritors, and there should therefore be no need for the legal intricacies required in writing a binding tzavaah?

A basic condition that complicates matters is that the assets to which the instructions refer must be deposited with a third party. Although there is a dispute among authorities concerning this demand, the Shulchan Aruch (252:2; see 250:23) rules that depositing assets with a third party is a requirement for the instructions to have halachic significance.

This condition is often hard to fulfill. With regard to land, the question is: How is it possible to meet the condition? To suggest that the mitzvah does not apply to land is difficult, because an explicit Tosefta (Bava Basra Chap. 3) states that it does. How then can land be deposited with a third party?

The Chasam Sofer (Choshen Mishpat 142) solves this problem by explaining that the registration of land in the name of the beneficiary is equivalent to its transfer to a third party. The transfer of property to a third party is required to demonstrate the wholehearted desire of the deceased that his instructions be carried out. If the land was actually registered in the beneficiary’s name, this is a sure sign that the deceased meant his instructions seriously (see also Minchas Shai 75; Ketzos Ha-Choshen 252:3).

This logic will allow us to understand the ruling of the Gemara (Gittin 40a) whereby a maidservant must be freed because of her master’s deathbed instruction to free her. Although the maidservant was not “deposited” with a third party, the Rosh (Kesubos 6:22) explains that her hold of her own person is no worse than the holding of a third party.

In any event, when a property is not deposited with a third party, or registered in the name of a beneficiary, the mitzvah to heed the instructions of the deceased does not apply. According to some (see Achiezer 3:34; the Achiezer is cited and discussed at length in Shut Cheishev Ha’efod Vol. 2, no. 106), validity in the secular courts is also sufficient for the mitzvah to apply – but this opinion is disputed by other authorities (see Minchas Yitzchak 6:165).

History has shown that reliance on the goodwill of inheritors to uphold instructions can lead to unwanted consequences. One of the classic examples of this is the famous will of the Rebbe of Sadigora. The Rebbe included no halachic transfers, but relied on his children to perform his instructions, even adding the following: “I am convinced of the righteousness of my sons, and they will doubtless perform my bidding, without deviating from the will of their father.”

Nonetheless, the validity of the will was placed into question (the main issue was whether certain special items of silverware, some of which were of great value and others of great sentimental/spiritual value), and much ado could have been avoided by including halachicmechanisms to ensure the tzavaah was binding.

Anybody who wishes his estate to be divided up in a manner different from Torah law should therefore be sure to write up a clear and halachically binding tzavaah document..

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