The coronavirus crisis has caused a significant spike in people who wish to write a last will and testament. The virus has made us feel our mortality, and, in turn, many want to ensure that their affairs are in order before they depart the world.
We have already had occasion to discuss writing a halachic will, which involves complications concerning whether it is right to divert one’s inheritance from the strict line of Torah law, and also concerning how to create a will that is legally valid by Torah law. In the present article we will focus on a specific element of inheritance law—one relevant to many of us.
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 firstborn in the land of Egypt I sanctified for me all the firstborn in Israel, both man and beast” (3:13). Although in 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 Torah inheritance.
When a father passes away, halacha dictates that the firstborn son receives twice the amount of his younger siblings. This indicates the special status of a firstborn, who is the principle continuation of the family into the next generation. But does this principle apply to all assets? Is it permitted for a father to bequeath his estate to his children in equal shares, by various means? Does it apply to debts, to money in bank accounts, and to stocks? These questions, among others, are discussed below.
The Double Portion
The Pasuk in Devarim (21:17) teaches that a person “must acknowledge the son […] as the firstborn by giving him a double share of all he has.” From here we learn that a firstborn son (a bechor) receives a double share in the inheritance 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 division is elucidated in Bava Basra 122b; Shulchan Aruch, Choshen Mishpat 277:7).
The previous Pasuk notes a negative instruction—that a person must not give preference to one of the other children—leading the Ramban to argue that the Torah has two distinct mitzvos, a negative and a positive instruction, to the matter of the double portion of the bechor (Hashmatos to Sefer Hamitzvos, Negative Commandments 12; Commentary to Torah, Devarim 21:16). The Ramban thus writes that a person who declares that his firstborn son is not in fact a firstborn, causing him to lose his extra portion, transgresses two mitzvos.
The Rambam, however, mentions only a positive mitzvah, and in fact includes the inheritance of the firstborn in a general positive mitzvah that refers to all the laws of inheritance (Mitzvah 248). According to the Rambam, the negative instruction does not refer to a prohibition, but is rather a statement of fact: a person cannot transfer the double portion of his firstborn to another child (see Minchas Chinuch 400:10; Shut Iggros Moshe, Even Ha’Ezer 4:87).
Note that the halacha of the double portion 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).
In cases of doubt—where it is unclear if a child is the halachic firstborn or not—nobody receives a double portion (Bava Basra 127a; Choshen Mishpat 278:11). Even if there are two brothers (among many), one of whom is known to be the bechor, they do not take a double portion together (three portions between the two of them), unless they write a harsha’a (legal power of attorney) to each other (see Bava Basra 127a; Choshen Mishpat 277:11; Nesivos Hamishpat 76:4, 278:9). The harsha’a only helps if one of them was initially recognized as a bechor, but they were later mixed up.
Father’s or Mother’s Property
While a firstborn son inherits a double portion of his father’s estate, he does not inherit a double portion of his mother’s inheritance (Bava Basra 111b; Rambam, Nachalos 2:8; Shulchan Aruch, Choshen Mishpat 278:1). This can be relevant for everyday questions of inheritance.
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.
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 held by the deceased. Assets that are ra’uy, not actually held, are distributed evenly among brothers (see also Shulchan Aruch, Choshen Mishpat 278:7).
Note that where collateral was taken for the loan, the Shulchan Aruch rules that the loan is considered muchzak and the firstborn will receive a double portion of the loan (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 does 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 nowadays have bank accounts. The question arises: Does a firstborn receive a double share of a bank account?
The consensus of authorities is that money deposited in a bank account is a loan. The bank does not keep the money in storage, 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 of bank accounts.
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 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 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.
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 where part pf the money is a loan and part is a 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.
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 what would otherwise have been a regular loan. Since the money is given as an iska the creditor is allowed to take interest-like payments. 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 deal, and the bank treats the money as its own and the depositor has effectively lent money to the bank.
Both Shut Shevet Halevi (Vol. 4, no. 215) and Pischei Choshen (Yerushah Chap. 2 no. 36) therefore rule that even for Israeli bank accounts, a firstborn child receives no greater portion of money than his brothers.
The share a firstborn receives in stocks will depend on their halachic status. Halachically, 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 receive an extra share of all stocks owned by the deceased.
However, this depends on the underlying assets owned by the company. Only tangible assets are subject to the double share. Other assets, notably loans that the company extended, will be no different than if the deceased had directly extended a loan, and are therefore not 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 portion. 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
As noted above, there is a specific prohibition (according to several Rishonim) 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 (the Ramban notes that even when the transfer in ineffective, a prohibition is transgressed). 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. Although the Yerushalmi notes that it is forbidden to cancel the firstborn’s advantage even by means of gifts, this applies to gifts that apply after a person’s death, and not to lifetime gifts (see Yerushalmi, Bava Basra 8:4 and commentaries).
Somebody who distributes his assets by giving gifts should leave some 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). The principle is that one should leave a significant amount. Rav Moshe Feinstein one time mentions a fifth of the estate (Choshen Mishpat 2:29-50), but also mentions a sum of a thousand dollars (based on a responsum of the Tashbatz 3:10). Since the principle is that the amount must not be insignificant it will depend on the size of the estate and the time and place.
For all concrete questions, of course a competent authority should be consulted. This is especially true concerning drawing up a will. Often a will is halachically invalid causing eventual problems.