In Parashas Bamidbar the Torah mentions the special nature of firstborns: “Because all the firstborn are mine, on the day that I smote all the firstborns in the land of Egypt I sanctified for me all the firstborn in Israel, both man and beast” (3:13).
Although for purposes of the Divine service the firstborns were supplanted by the Levi’im, there remains an important area of Torah law for which a firstborn child – specifically, a firstborn son – remains special. This is in matters of inheritance.
When a father passes away, halachah dictates that the firstborn son should receive double the inheritance of his younger siblings. Does this principle apply to all assets? Is it permitted for a father to explicitly bequeath his estate to his children in equal shares? We will discuss these questions, among others, below.
The Double Portion
A firstborn son (a bechor) receives a double share of certain assets. For example, if there are four sons, the estate is divided into five equal parts. The firstborn receives two of those shares, or forty percent of the estate, while the other brothers each receive one share, or twenty percent each. This halachic ruling derives from an explicit verse in Devarim (21:17(.
This halachah applies only to a firstborn born by natural birth. If the firstborn was delivered via cesarean section, neither he nor any subsequent child will have the status of a bechor (Bechoros 47b).
Father’s or Mother’s Property
A question was once raised in Beis Din concerning the inheritance of a family home. Both parents had passed away, and the oldest brother, who was a firstborn, claimed a double-share of the estate, as the Torah law for firstborn inheritance.
What the firstborn brother was unaware of was that the estate had been officially documented as the joint property of both husband and wife, making them joint owners. Although a firstborn son inherits a double portion of his father’s estate, he does not inherit a double portion of his mother’s inheritance (Shulchan Aruch, Choshen Mishpat 278:1).
If the mother had passed away before the father, the father would have inherited his wife, and the entire estate would have become his property. However, in this case the father passed away before the mother, so that at the time of his passing he only owned half the property. Thus the firstborn son only received a double portion of his father’s share in the home.
Inheritance of Debts
An important exception to the double share of the firstborn is debts owed to the father.
A bechor only receives a double share of the assets that were in his father’s possession at the time of his death. Debts owed to the father but not collected until after his death are distributed to all the sons equally. This applies regardless how secure the debt is.
This principle is referred to in the Gemara (Bava Basra 125b) as inheritance of muchzak. The double-inheritance of a firstborn only applies to assets that are muchzak, meaning actually “in holding” by the deceased. Assets that are only ra’uy, not in holding, are distributed evenly among brothers (see also Shulchan Aruch, Choshen Mishpat 278:7).
Note that where collateral was taken for insuring the loan, the Shulchan Aruch rules that the loan is considered muchzak and the firstborn will receive a double portion of the asset (the Rema and the Shach dispute the status of collateral on a non-Jewish debt).
Based on this principle, the Shulchan Aruch (Choshen Mishpat 278:6) rules that a bechor does not inherit a double portion of fruit growing on an asset after his father’s death. This, however, applies specifically to fruit that involves some change in the asset, and that do not relate directly to the asset itself. If a tree has grown bigger in the time between the father’s death and the division of inheritance, the firstborn will take his double portion of the entire tree at the time of division.
Double Share of Bank Accounts
Most people who pass away have bank accounts. The question arises: Does a firstborn receive a double share of a bank account?
The consensus of authorities considers money deposited in a bank account as a regular loan. The bank does not keep the money in storage of any kind, but rather invests the money as it deems fit, promising to pay the account holder on demand. Accordingly, it follows that money in a bank account is not considered muchzak (in holding), but is rather ra’uy (potential). A firstborn son thus receives the same share as his brothers.
Yet, there is some room to distinguish between an ordinary loan and a bank deposit. Although it may be formally defined as a loan, a bank deposit is far easier to collect than a regular loan. Instead of having to chase the borrower, the “creditor” (the account holder) is able to visit his bank or write a check, withdrawing the money at will.
Furthermore, the money is generally considered safe. Money in the bank is not a regular case of money in potential, but is usually considered actual money in possession. Perhaps, then, this distinction will render the money as being in the account holder’s holding, thereby giving the firstborn son a double portion.
This distinction has been raised by a number of Poskim (see especially Rabbi Mashash in Tevuos Shemesh, Choshen Mishpat 1). However, the great majority of authorities who have dealt with the issue concur that money held in bank accounts is not considered muchzak (this is the ruling of Rabbi Yaakov Blau in Pischei Choshen, Rav Moshe Feinstein, Rav Shmuel Wosner, and others; for a comprehensive list see Unka DeDina Vol. 2, p. 279).
Thus Rabbi Yaakov Emden (She’eilas Yaavatz 2:31) writes that “money that is deposited in a bank has the status of ra’uy, and a firstborn does not receive a double portion.” Ginas Veradim (Even Ha’ezer 4:19) similarly states that “money deposited in a bank, even though it is extremely safe, is considered a loan” (see also the Chida in Chaim Sho’al Vol. 1, No. 74, Sec. 8).
Money in an Iska
For Jewish banks the story might change, because of the need for a Heter Iska arrangement. Before considering the question of Jewish banks, we will introduce the concept of an Iska and its relevance to the matter at hand.
An Iska arrangement is an investment in a business venture that is part loan and part deposit. The dual nature of the investment allows both the investor and the receiver to profit from the venture, without there being concern for a Ribbis prohibition. The investor receives profits (or losses) from the deposit part of the investment, while the loan part is secure; the receiver receives profits (or losses) from the loan part of investment.
Concerning regular deposits, there is no question that a firstborn receives a double portion: A deposit, unlike a loan, is readily available for the depositor to collect, so that it is considered muchzak. For money that is held in an iska arrangement, whereby part of the money is defined as a deposit and part as a loan, there are actually three opinions among authorities as to the status of the money with respect to firstborn inheritance.
According to some, the status is divided according to the division in the iska between deposit and loan: the firstborn receives a double portion of the deposit part, but only a regular portion for the loan part (Shut Pnei Yehoshua Vol. 2, No. 104; Chaim Sho’al ibid).
However, many authorities maintain the entire sum is considered muchzak. The reason for this is that even the loan part of the sum is dedicated to the iska – the receiver is not permitted to spend it on his groceries, but must use it only for the joint business endeavor. It thus follows that the entire sum (and not only the deposit half) is considered muchzak.
This opinion is presented by Shut Mararik (145), Erech Lechem (Choshen Mishpat 278:7), Shut Ginas Veradim (ibid.), Shut Shevus Yaakov (1:142), and Shaar Mishpat (Choshen Mishpat 278:2), among others.
Other authorities writes the opposite: Because the package deal of an iska implies that some of the money is defined as a loan, even the part that is a deposit is rendered ra’uy, and loses the status of muchzak. This is the opinion of Divrei Rivos (78), Nesivos Hamishpat (278:4), and several other authorities.
Jewish Banks
We can now return to the question of bank accounts. The analysis above of banks applies only to non-Jewish banks, in which no heter iska applies to deposits. A heter iska is a mechanism that applies the principles of an Iska, as outlined above, to a regular loan. The loan, as it were, is classified as an Iska, thereby permitting the creditor to take otherwise prohibited interest. Because Jewish banks (in particular, all Israeli banks) operate with a heter iska arrangement, the halachah might change.
Some authorities write that a bank with a heter iska will have the same status as a regular iska arrangement, because the apparent loan is defined as really half loan and half deposit. Thus, the firstborn will receive a double portion of the pikadon part of the money (usually half), and the rest of the money will be left as a matter of doubt (see Darchei Choshen Vol. 2, p. 184) according to those that maintain the middle opinion by a regular iska.
Some leading authorities, however, have written that bank accounts should not be considered as a regular Iska. The reason for this is that in contrast to a true Iska, for which the money is designated for a specific venture, money in a bank account is not limited to any specific business dealing, and the bank treats the money as its own and the depositor has effectively leant money to the bank.
Both Shut Shevet Halevi (Vol. 4, no. 215) and Pischei Choshen (Yerushah Chap. 2 no. 66) therefore rule that even for Israeli bank accounts, a firstborn child receives no greater portion of money than his brothers.
Stocks and Shares
The share a firstborn receives in stocks and shares will depend on their halachic status. Technically, every shareholder is a partner in the relevant company. Since the firstborn is entitled to a double-share of assets that the deceased was a partner in, he should ostensibly receive an extra share of all stocks owned by the deceased.
However, this will depend on the underlying assets owned by the company. Only tangible assets are subject to the double share. Other assets, such as loans that the company extended, will be no different than if the deceased had directly extended a loan, and are therefore not be subject to the double portion (Rav Sariel Rosenberg, Yeshurun 20 p. 579).
In practice, determining what percentage of the shares’ value consists of tangible assets is virtually impossible. There is also some discussion among authorities as to whether shareholding is considered as actual ownership of the company or not, which will also influence the halachah of a firstborn’s inheritance.
Yet, the Emek Hateshuva (3:117) suggests that a firstborn receives a double portion of shares even though the company may own debt or other intangible assets. He reasons that only direct loans, which must be collected before they have any use, are excluded from the double share. In contrast, stocks are never ‘collected’; rather the shares themselves are traded. As such, the shares are considered in the deceased’s possession at the time of his death, and the bechor will receive a double-share (see also Pischei Choshen, Yerushah Chapter 2 note 72).
Transferring from the Firstborn
There is a specific prohibition against depriving a firstborn of his double share by stating in the will that the firstborn should inherit only a regular share. Such attempts are both ineffective and prohibited. Although a sheciv mera (somebody who is sick and about to die) can redistribute his estate by ordering that a particular son inherit a larger share, this does not apply when it deprives the bechor of his double share.
However, a testator is permitted to gift assets to others, even though the result will be that there is little remaining for the firstborn’s extra share. Just as gifts can be used to give daughters a share in the inheritance, a gift is an effective means of avoiding the rights of an eldest son to his additional share.
Somebody who distributes his assets by giving gifts should leave some amount of money or property outside the will. The reason for this is in order that the Torah’s rules of inheritance apply to at least a portion of the estate, and the Torah inheritance will therefore not be entirely uprooted (see Shulchan Aruch, Choshen Mishpat 282).
This can be accomplished by including a special paragraph in the will so stipulating (see Shut Tashbaz, Vol.3 No.147; Ketzos Hachoshen 352:2). RavMoshe Feinstein mentions a fifth of the estate (Choshen Mishpat 2:29-50), but also mentions a smaller sum (based on a responsum of the Tashbatz 3:10). In practice, the custom is to leave an amount of several thousand dollars, and this is sufficient for this purpose.
For all concrete questions, of course a competent authority should be consulted.
