[1] Bamidbor 27:8

[2] Hilchos Nachalos 6:1

[3] Bamidbor 27:11

[4] Shulchan Aruch, Choshen Mishpot 250:17

[5] The various laws applying to this are discussed in the Shulchan Aruch, Choshen Mishpot chapter 250.

[6] Ibid, 257:6

[7] Ibid

[8] Ibid 281:7

[9] Bava Basra, Perek Yesh Nochalin, 599

[10] Shulchan Aruch, Choshen Mishpot, 209

[11] Even Ha’ezer, 90

[12] Kesubos 52b

[13] End of Responsum 47

[14] Kesubos 52b

[15] Vol. III (Even Ha’ezer) 147

[16] The Mahara”m Mintz himself suggests that the Shtar Chatzi Zochor was not instituted to replace the Kesubas B’nin Dichrin but rather to replace the takanah of Parnasas Habas, which will be explained later.

[17] Vol. III, 147

[18] Vol. V (Choshen Mishpot) 151

[19] In the Chasam Sofer’s case, a man who had no sons wished to leave all his belongings in a trust fund to be distributed to charity. As this was commonly accepted practice, the Chasam Sofer suggests a justification. The whole prohibition of redistributing one’s estate, he suggests, is only with regard to one’s inheritors. However, to give to charity benefits one’s own soul, and a person himself takes precedence over his inheritors. At any rate, the Chasam Sofer allowed it in the case of a man who has no sons (although he had other relatives) as long as he leaves a respectable amount for his inheritors.

[20] Ibid

[21] As we mentioned before, the Gemora answers that the vital concern of marrying off girls overrode the rule not to redistribute one’s estate.

[22] This Gemora seems to indicate that no person may give away any of his property in his lifetime because it will lead to his sons losing from his estate after his death. Surely, though, one is free to do with one’s property as one wishes, including giving presents to whomever one wants! . (See also commentary of the Levush to Rashi (Bereishis 24:36) who asks how Avrohom was able to give everything he owned to Yitzchok, thus removing Yishmoel and the sons of Keturah from his estate; he answers that this prohibition applies only for after one’s demise, that it only applies to land, and that Avrohom was told specifically by Hashem that only Yitzchok would be considered his descendant.) This subject is dealt with at length in the Poskim [Sdei Chemed (Klallim 30:3), Minchas Yitzchok (3:135) et al] and is beyond the scope of our present discussion

[23] Vol. III (Even Ha’ezer) 147

[24] Nonetheless, we do find references in the Poskim of a Shtar Zochor Sholeim, in which the daughter receives a full portion in the estate, as if she were a son. See for example Shvus Yaakov Vol. III: 174, Noda Beyehudah Vol. I: Choshen Mishpot 26, and the Chasam Sofer himself (Vol V: 91 and 173). See also Shitta Mekubetzes (Kesubos 68a) quoting the Rivosh in the name of R’ Yeshaya of Trani as saying that a man may give to his daughter up to the equivalent of his son and no more. This, he says, is evident from the Gemora quoted above which explains the ides of Kesubas Bnin Dichrin as being in order that a man “Should give his daughter as his sons,” implying that that is the limit.

[25] This is in line with the Ta”z, who writes (Orach Chaim ch. 588) that even when Chazal instituted mechanisms that would have the result of negating a Torah law, they limited themselves to laws that, although learned from the Torah, were nonetheless not stated explicitly. Chazal were unable to negate anything that is written explicitly in the Torah.

[26] 21:6

[27] Vol. III: 174

[28] Kesubos, Kuntras Acharon 108

[29] I have subsequently discovered that this question of whether an only son receives his inheritance as if he were a firstborn is discussed comprehensively in the Dvar Avrohom (Vol. I ch. 27) where he quotes the Shvus Yaakov as saying that he does, with the Shev Yaakov (Choshen Mishpot 19) ruling that he does not. He further discusses possible proofs to this question from the commentaries of the Rashbam and the Rema”h to the Gemora Bava Basra 127a.

[30] Shailos Uteshuvos Vol. I: 129

[31] Shulchan Aruch, Choshen Mishpot 218:19

[32] Because this is the reason, the Poskim include in his home the father’s place in the synagogue.

[33] See also Responsa of R’ Akiva Eiger Vol. II: 89, where he makes a similar point, and adds that even though the shtar includes a clause that gives the daughter the benefit of any doubts in the text of the shtar, in this case the text itself is clear – she does not receive any real estate – and it is up to her to prove that her father had any intention to award her property other than the family home.

[34] Vol. II (Even Ha’ezer) 168

[35] Choshen Mishpot 21

[36] In fact, he adds, it could be argued that they actually have more of a right than the sons in a Sefer Torah, since they do not learn Torah, and by allowing the congregation to read from their Sefer Torah they would also be able to share in the great merit of learning Torah!

[37] Shu”t Mahari”l Hachadashos 164

[38] Bava Basra 159a

[39] The Gemora bases this on the verse (Tehillim 45:17) “In place of your fathers shall be your sons,” which implies that the grandsons inherit direct from their grandfathers, and not via their fathers.

[40] Shu”t Remo”h Ch. 3

[41] The Maharsha”l (Shu”t Maharsha”l Ch. 59) gives the identical explanation to a similar ruling.

[42] Interestingly, the She’eris Yosef ends that the Mahara”m Padua conceded that he could not rule definitively at the time, as he was not in possession of his seforim, since at the time there was a decree that any Torah seforim found were burnt by the authorities.

[43] Shu”t Mahara”m Lublin 14

[44] Choshen Mishpot 281:7

[45] 281:6

[46] Shulchan Aruch Choshen Mishpot 210:1

[47] 281:9

[48] Shulchan Aruch, Even Ha’ezer 90:1

[49] The reason for this is that even if we had witnesses who testified against a man’s admission, the admission is still valid; Umdenoh is certainly not stronger than two witnesses!

[50] ibid, note 2

[51] This ruling of the Remo”h was the subject of considerable debate amongst the Poskim, who ultimately ruled almost unanimously as the Remo”h does. A comprehensive discussion of the various responsa can be found in the Shu”t Chasam Sofer (Even Ha’ezer Vol. II, ch. 159).

[52] Shu”t Mahara”m Padua : 51

[53] Shu”t Chavos Ya’ir : 63

[54] This may work to her advantage as well. In the case of the Chavos Ya’ir, the Kehillah appropriated a share of the estate in lieu of various taxes. Had the daughter received her share automatically, the money lost to the Kehillah would have been divided up proportionately amongst all the children, but seeing as the daughter does not actually inherit but rather gets paid a share of the estate, any additional taxes on the estate do not affect her share.

[55] Shu”t Mahara”m Lublin: 14

[56] Shu”t Mahara”m Padua: 51

[57] Shu”t Mahari”k 78

[58] The Mahara”m Padua brings proofs to this and explains in respect to what we consider it an inheritance or a debt.

[59] Choshen Mishpot 281:7

[60] Shu”t Chavos Ya’ir 63

[61] This answer will not suffice to explain why the Remo”h might agree in this case, because as we have already noted, the Remo”h disagrees with the second explanation of the Mahara”m Padua, as is evident from the fact that he rules that all debts, and not just the Issur Nechasim, are deducted from the daughter’s portion as well as the sons’.

[62] Although we can surmise that the father would certainly have wanted her to take a proportionate cut in her share had he known what would happen, that does not change anything. A literal reading of the Shtar Chatzi Zochor allows her to take her full share regardless of any other debts. In order to oblige her with sharing the burden of any debts, we need to be able to say that the father obviously meant to include a proviso that she take her share only after all these other debts have been settled. With regard to unpredictable circumstances, we cannot say that it is as if he stated clearly to take them into account, since he had not thought about them. As such, the literal reading of the shtar stands.

[63] Shu”t Mahara”m Lublin ch. 4

[64] Beis Meir Even Ha’ezer 113:2 (p. 72)

[65] This fundamental difference of opinion between the Mahara”m Lublin and the Beis Meir is relevant not only for this case but for all cases of a later creditor claiming before an earlier creditor.

[66] Shu”t Maharil Hachadashos 155

[67] Shulchan Aruch Even Ha’ezer 113:2

[68] Shu”t She’eris Yosef ch. 8

[69] Shu”t She’eris Yosef ch. 7

[70] Even Ha’ezer 113:13

[71] Even Ha’ezer 113:11

[72] Vol. II: 120

[73] Shulchan Aruch Choshen Mishpot 104:1

[74] Although the half-share is not paid out of land, if the sons instead pay the large debt rather than the half-portion, she receives payment as any other creditor, i.e. from any land in the estate.

[75] ibid 104:3

[76] ibid note 9

[77] She’eris Yosef ch. 2

[78] Emunas Shmuel ch. 60

[79] Bava Basra 3a; Choshen Mishpot 203:1

[80] Nodah Biyehudah (I) Choshen Mishpot 33

[81] Avodas Hagershuni 124

[82] There is an opinion that holds that the maximum we give the daughter is ten per cent, but here too the Mahara”m Mintz says that this applies only if we are relying on our own estimation. In this case, though, the father expressed clearly his desire to give more, and we award her accordingly.

[83] Quoted by the Beis Shmuel, Even Ha’ezer 90:5

[84] Shu”t Shvus Yaakov II: 122

[85] We have noted earlier that the Nesivos Hamishpat points out that this phrase that indicates that her descendants may claim it in her place refers not to the actual debt – in which case this phrase would be redundant as the Shvus Yaakov writes – but rather to the option to give her a half-share in the estate. As such, it certainly will not effect her right to sell the actual debt to anyone else.

[86] Shu”t She’eris Yosef 8

[87] Shu”t Shvus Yaakov II:120

[88] See also Shu”t Binyan Tzion 161

[89] Shu”t Maharil 88

[90] Shulchan Aruch Even Ha’ezer 108:3

[91] Shu”t Binyan Tzion 161

[92] Shulchan Aruch Choshen Mishpot 281:7

[93] Another possible way to reconcile the two rulings, suggests the Binyan Tzion, is that it would only be forbidden if the Shtar Chatzi Zochor contained a specific clause forbidding the father from doing so, as indeed the standard text quoted in the Nachalas Shivoh states. Otherwise it would be permitted.

[94] Shu”t Chasam Sofer Vol. III (Even Ha’ezer) 147

[95] See, however, the marginal notes of R” Akiva Eiger to Shulchan Aruch Even Ha’ezer 108:3, and Shu”t R’ Akiva Eiger Vol.  I:129

[96] Bamidbor 27:11

Reintroducing The Shtar Chatzi Zochor

A Halachic Method Of Bequeathing To A Daughter

By Y D Hool


Introduction – A daughter does not inherit her father if her father leaves sons

1)      Halachic ways to give the daughter a share of the inheritance, and their drawbacks

2)      Shtar Chatzi Zochor

3)      The permissibility of the Shtar Chatzi Zochor

4)      How much does the daughter actually receive?

5)      The exclusion of land and seforim

6)      “Ro’uy” – If the father died in his father’s lifetime

7)      If the daughter dies in her father’s lifetime and leaves children

8)      If the daughter dies in her father’s lifetime and leaves no children

9)      Fluctuations in the value of the estate

10)  The father’s creditors take precedence

11)  Paying the creditors so that the daughter loses everything

12)  If the father intended to give a Shtar Chatzi Zochor but did not actually do so

13)  If the deceased left only daughters

14)  Selling a Shtar Chatzi Zochor

15)  Redistributing the estate after giving a Shtar Chatzi Zochor

16)  Conclusion

Appendix – Text of a Shtar Chatzi Zochor as brought in the “Nachalas Shivoh”)
Introduction A daughter does not inherit her father if the father leaves sons

The Torah[1] tells us that if someone dies and leaves one or more daughters and no sons, then the daughters inherit all of his possessions. If, however, he leaves even one son, the son inherits all and the daughters receive nothing. Even if the deceased would leave a will instructing that his daughter should inherit him, it would have no validity in Halacha. As the Rambam[2] says, “A person cannot make inherit someone who is not due to inherit him, nor can he prevent from inheriting someone who is due to inherit… as it says[3], ‘And it shall be for the Children of Israel as a statute of judgement,” which teaches that this is a statute that cannot be changed and is unconditional. It makes no difference if one is well or on one’s deathbed, nor if one writes this instruction or gives it orally.”

Moreover, not only can a person not cause someone else to inherit him, seeing as the inheritance automatically passes to whom the Torah defines as the nearest relative, but a person also cannot give away his possessions as a present after his death[4]. This is because only a live person can effect an act of giving or receiving. After death, a person cannot effect anything, even if he left instructions beforehand.

1) Halachic ways to give a daughter a share of the inheritance, and their drawbacks

There are, however, a number of ways that a person can use to ensure that his daughters also benefit from his inheritance.

The first and most obvious is to give a present to his daughter in his lifetime. As long as a person is alive he is certainly entitled to do with his possessions as he sees fit, including giving it away to whomever he wishes. However, most people do not want to give away their possessions as long as they live, because they wish to use them themselves, and therefore require a method whereby they can give away their possessions after their death.

Another option available is to give a Matnas Sh’chiv Mera. Chazal were concerned that a person on his deathbed who was unable to divide up his possessions in the manner he wishes might become so upset that his condition may deteriorate to the point of hastening his demise. In order to avoid this, they instituted that a person on his deathbed has the power to give away his possessions merely by oral instruction, without actually physically giving things over. This device is known as a Matnas Sh’chiv Mera[5]. This is also not practical for the general purpose of bequeathing to a daughter because people do not know when they will die, and when the time does come, they may have little or no advance warning. Even if they do know shortly beforehand, they may be too unwell at that point to arrange anything.

Yet another option is to give away, in one’s lifetime, the property with the explicit proviso that the original owner retains all rights of the usage of the property until his death. In the classic example, a person can give over a tree to someone else and yet retain the rights to all t

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