3) The permissibility of the Shtar Chatzi Zochor
A problem arises. The Gemora teaches that one should not change around one’s inheritance to favour even a good son over a bad son, and all the more so not to give a daughter in place of a son. How then was the Shtar Chatzi Zochor permitted?
(i) This question was posed by the Mahara”m Mintz, who points out that the Gemora itself asks a similar question concerning the takanah (Rabbinical enactment) of Kesubas B’nin Dichrin. At the time of marriage, every man must give his wife a kesubah – marriage contract – in which he takes upon himself various obligations to his wife, the principle amongst them being the obligation to pay his wife a certain sum of money should he divorce her; if he dies before her, the sum of the kesubah will be paid to her from his estate. In addition to this, Chazal decreed that in the event that the wife dies before her husband, any sons born to her from this husband would be entitled to the sum of the kesubah from his estate (when he eventually dies), before the estate is divided up between them and any other sons that he may have had from another marriage.
Surely, asks the Gemora, Chazal frowned upon the redistribution of one’s estate, and so how did they encourage a man to give a large dowry to his daughter if it meant that his sons would lose out?
The Gemora answers that there was an overriding concern here that forced Chazal to make this enactment. People became reluctant to give their daughters large dowries, because since the Halachah is that a husband inherits his wife, they feared that their daughter might die before her husband and all of her possessions would pass to her husband, including the dowry. When he in turn died, the property would pass to his sons, who may include sons from another marriage, and the property given as a dowry would thus pass out of the woman’s father’s family. Because dowries became small or non-existent, men became reluctant to get married, and Chazal realised the need to help the girls to get married and settle down. They therefore instituted that if a woman dies before her husband, her sons from this marriage would inherit her kesubah, which included much of the dowry that she brought into the marriage. In this way, the property would not pass out of her father’s family because his own grandsons would inherit it. As such, fathers were happy to give increased dowries, and girls found it easier to find husbands.
This necessity to help girls to get married overrode the general rule of avoiding changing one’s inheritance to benefit a daughter at the expense of a son.
In that case, says the Mahara”m Mintz, the Shtar Chatzi Zochor is also permitted, seeing as the idea was also to enable girls to get married. Men were more likely to marry a girl if they knew that they would be considered like a son to their fathers-in-law, to the extent that they would receive a half-share of his estate when he died.
Moreover, adds the Chasam Sofer, the institution of Kesubas Bnin Dichrin was abandoned in the time of the Ge’onim, as the Ro”sh writes, because it was evident that on the contrary, people were giving all their money to their daughters and leaving nothing for the sons! If so, perhaps the Shtar Chatzi Zochor was instituted as some sort of replacement to the original institution of Kesubas Bnin Dichrin, to ensure that people would continue to provide for their daughters.
Others add that the Shtar Chatzi Zochor was not merely intended to help the girls to get married – it was also intended to ensure that women became beloved in the eyes of their husbands!
(ii) The Tashba”tz writes that as long as one leaves a respectable amount for the original inheritors, there would be no problem with redistributing the rest of one’s estate. The prohibition applies only if little or nothing is left for the original inheritors.
(iii) The Chasam Sofer suggests that the prohibition of redistributing one’s estate may only apply to a person on his deathbed, because at that point he is specifically negating the Halachos of inheritance. If, however, he wished in his lifetime to give large portions of his wealth to his daughters, he would be entitled to do so.
However, the Chasam Sofer points out that the Gemora seems to rule out this distinction. He refers to the very same Gemora that we quoted earlier, which, after explaining that the institution of Kesubas Bnin Dichrin was made to encourage fathers to give their daughters large dowries, asks why this is not considered to be forbidden under the prohibition of redistributing one’s estate. It is clear then that the prohibition applies even during one’s lifetime.
(iv) In a different responsum, the Chasam Sofer expands on the suggestion that the Shtar Chatzi Zochor was permitted because it, like the Kesubas B’nin Dichrin, enables girls to get married more easily. Nonetheless, he adds, they added various terms and conditions into the Shtar Chatzi Zochor in order to limit the extent of redistribution of inheritance.
Firstly, they allowed a daughter to receive only a half of what the sons receive. In this way it would be similar to the Torah’s rules of inheritance, where we find that a firstborn receives double that of each of the other sons.
Furthermore, the standard text of the Shtar Chatzi Zochor contains a clause that excludes the daughters from receiving a portion in any real estate or books. The exclusion of real estate, suggests the Chasam Sofer, was added because when the Torah discusses the laws of inheritance, it refers specifically to land (the parshah was taught in response to the request from the daughters of Zelophchod to inherit their father’s portion in the land of Israel). True, the fact that all a man’s possessions, and not just real estate, are inherited is also a Torah law (Mid’Oraysso). Nevertheless, when Chazal created a loophole that enables daughters to receive a portion of their father’s estate, they nonetheless excluded her from real estate in order to avoid going against that which is explicit in the Torah.
The idea to exclude daughters from taking a share in their father’s seforim (Torah books) comes from the Gemora that states that a son has more of a right to inherit because he has the obligation to learn Torah. If so, suggests the Chasam Sofer, although the Shtar Chatzi Zochor allows the daughter to receive a share in the inheritance, at least in the Torah books themselves Chazal ensured that the sons would retain their rights.
We shall return to the reasons for the exclusion of real estate and seforim later.
(v) The Nachalas Shivoh implies that the prohibition of redistribution of one’s estate applies only if it is given away using an expression of inheritance, whereas the Shtar Chatzi Zochor is arranged as a debt with a condition, as explained above. This explanation is difficult, however, because this prohibition cannot apply only when one gives away property via a mechanism of inheritance, since, as we have pointed out at the very outset, it is anyway not within a person’s power to redistribute his estate by redefining who his inheritors should be, and any attempt to do so is null and void.