15) Redistributing the estate after giving a Shtar Chatzi Zochor

The Maharil[89] rules that once a father gives a Shtar Chatzi Zochor to his daughter, he may not give away his property in his lifetime if it means that in effect the daughter will be left with nothing to claim after his death. This ruling is quoted by the Remo”h[90] as being the Halachah. Nonetheless, he does imply that if the father nonetheless went ahead and gave away his property, the gift is valid, wrong though he was to do so.

The Binyan Tzion[91], however, notes that the Mordechai quotes a Responsum of the Mahara”m as saying that although a father may have given a Shtar Chatzi Zochor to his daughter, he may still do with his property in his lifetime as he sees fit, seeing as the Shtar states only that she will receive a share in whatever estate he leaves when he dies. This is also quoted by the Remo”h[92], and there is therefore an apparent contradiction.

The Binyan Tzion suggests an explanation. If he gave the present in his lifetime, he is entitled to do so, as the Mordechai says. The Maharil is discussing a case where he specified that the gift should only be valid after his death; in this case he clearly indicates that he is only giving the gift in order to make the daughter lose, and it is therefore forbidden.[93]

The Chasam Sofer[94] elaborates and writes that the outcome will differ depending on the circumstances. If the father genuinely gave presents to his wife or other people, and would have done so even if he had not written a Shtar Chatzi Zochor to his daughter, the gift is certainly valid and even permissible, because the father may do as he wishes with his property whilst he is alive, and the daughter only gets a share in what is left when he dies. If, on the other hand, it is clear that no actual gift was given, and any contract or act of acquisition was done purely for the purpose of ensuring that the daughter lose out, then the gifts are obviously not valid, and remain in the estate with the daughter receiving her share.

There is a third possibility, which is that the father genuinely gave a gift to his wife because he wanted her to have it, but nonetheless would not have done so if he had not previously written a Shtar Chatzi Zochor to his daughter. This is the case, says the Chasam Sofer in which we would say that although it is wrong to do so, the gift is nonetheless valid.

He adds that even though the standard text of the Shtar Chatzi Zochor includes a clause that the father accepts upon himself an oath not to retract or act in any way that will prevent the daughter from receiving her due share, the gift itself is not invalidated by the fact that he transgressed his oath[95].

Pages: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Tags: Guides

Share The Knowledge