My friends wife just recently passed away from a long illness. My friend and his wife owned a house together with both of their names on the title and the mortgage as is common place. There are 3 grown children who unfortunately are not on good terms with the father (my friend). The children mentioned to my wife yesterday a claim that there was a kinyan made by the deceased mother to them that they should have her portion of the house. My friend was not made aware of any such kinyan until yesterday. Apparently there were no witnesses to any such kinyan if indeed there was such a kinyan done. Also they made mention that they have a written paper from the mother that she wanted her possessions divided by the children. My friend just heard of that as well and no one has produced any document thus far.
The children don’t live in the house anymore and my friend would like to sell the house now as he can’t afford the mortgage payments and has no need for such a large house for himself. If there is a legal title search made and it shows that my friend is the sole title holder of the house to legally sell it are there any halachik ramifications to the sale in theory? Could the children contest the sale of the house on the grounds that they are halachikly 50% owners of the house and they didn’t sell it? If the children do have a valid claim and come forward after the house was sold by the father, could they make their claim against the buyer or only against their father to reimburse them? Even if they produce a document from the mother that was signed by 2 valid witnesses and there was a kinyan sudar performed (all of which has not been produced or shown to anyone outside of the group of 3 children) does that have validity due to the fact that maybe the wife had no legal halachik power to give away her portion of the house due to nichsei Melug principles without the husbands permission or knowledge?
If my friend sells the house and the children did make a personal kinyan sudar with their mother prior to her passing but did it in such a way that they have no proof (no witnesses or signed shtar) is there any room for the buyer or the seller to be held guilty min hashemayim for ultimately buying and selling a house that is partially owned by the 3 children? Because if so, then a moral person may not want to get involved in buying such a house. Or is there no grounds in halacha for such concerns?
Answer:
If there is no proof to the fact that a kinyan was made, the husband/father can assume that he is the sole owner of the entire property, and can sell it at will.
There is no need for him, nor the buyer, to worry about the possibility that such a kinyan was made, and the entire onus is on the children to prove their case.
Even if there is proof to the kinyan that was properly enacted, it is possible that the father will not lose their share in the property, because Chazal decreed that he is the primary inheritor of his wife, and is considered a loke’ach – a first buyer of the property. However, this can be a complex issue, and if the children produce proof, the question will have to be asked again.
Best wishes.
Sources:
Concerning a wife who gives away or sells nichsei milug, see Shulchan Aruch, Even Ha-Ezer 90. The halachah depends on the classification of the property, and on whether the property was given away with permission of the husband.
As a follow up question to the just answered one titled “Wife’s Property after Passing”; what happens in the event that my friend goes ahead and sells the house and only afterwards, the children produce proof of a properly made kinyan of the house to them by the deceased mother? Will the children have rights to come after the buyer of the house or only have rights to come after the seller (father) who sold the house without their permission?
This needs to be known prior to any sale so as to know whether there is a need to inform the potential buyer of such a possibility or not.
As noted in the [updated] answer, even if the children produce proof to a kinyan having been made, the chances are that the ownership will still be the husband’s: A husband inherits his wife’s property, and she doesn’t have the right to give it away or sell it without his permission. If the children produce proof that the property was given away with the husband’s permission, the sale (of the husband) will not be valid.
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