Question
My husband and I have been married for a few years and Baruch Hashem are happily married. For both of us, it is our second marriage since our spouses from our first marriage passed away. Both my husband and I have children from our first marriages. I brought into our marriage a significant amount of assets and even now I am the bread winner. At the time of our marriage I didn’t think of the problem, but now I am concerned that if I predecease my husband, he will inherit all my assets and when one day he passes away, all those assets will be inherited by his children and my children will not inherit any of my assets. However, I do want my children to inherit my assets. Since we are happily married, I think my husband will co-operate if you can offer a solution how I can accomplish my goal.
Answer
Baruch Hashem your husband is co-operative because without his co-operation you would be stuck and could only daven that you will outlive your husband.
As usual, it is much better and easier to avoid problems and not to have to solve them. Therefore, before we offer a solution, we will discuss what you should have done to avoid the problem so that others can avoid your problem.
The Mishna (Kesubos 83A) introduces a concept known as siluk-removal. We know that if one owns something he has the legal right to give it away. The Mishna teaches us that if one does not yet own something or has not yet acquired a right and, therefore, he cannot yet give it away, nevertheless, he can do siluk to prevent himself from acquiring the right or the object in the future. There are specific words that he must use in order to legally prevent himself from acquiring this right or object. However, saying these words suffices and one does not need to do a formal act of kinyan. He also does not need anyone else’s co-operation. He simply prevents himself from acquiring a potential right. We will see that in order to do siluk he must nonetheless have some likelihood of acquiring the object or right.
One of the rights that is discussed by the Mishna is the right of a husband to inherit his wife. While there is a dispute in the Mishna if a husband has the ability to prevent himself from acquiring this right, the halacha (EH 92, 7) follows the position that he does have this ability.
Since siluk is that one acts to avoid acquiring a right or object, he must act before he has actually acquired this object or right. If one already owns an object, he must give it away and can no longer use siluk to rid himself of the object. Likewise, one cannot remove a right that he already has.
In order to clarify how to use siluk to legally bring about that a husband will not acquire the right to inherit his wife, we have to recall a fact about Jewish marriage. Jewish marriage is a two-step process. The first step is eirusin or kiddushin where a man gives his future wife money or something worth money and states that with this money or object, he is acquiring her as his wife. Our custom is that the man places a ring on the woman’s finger and says these words. After that moment the woman is no longer single but she has the status of an arusa and the man is called an arus. As described by the Torah – and this was the practice in the time of the Mishna and Gemoro – the woman continued to live with her parents (generally for up to a year).
An arusa has a special status: she is no longer single but she is not fully married. For example, while it is already a capital crime if she has relations with anyone else, her arus does not have to support her. What is important for us is that if she dies her husband does not inherit her assets. He only acquires the right to inherit her when they become fully married.
The Gemoro (83A) says that when the woman is an arusa the man can use siluk to avoid acquiring the right to inherit his wife but not after they are fully married. The reason is that with full marriage he acquires the right to inherit his wife and, as we saw previously, one can only use siluk before he acquires a right.
The Rishonim (Rashba, Ran) whose position is authoritative (Ramo EH 92, 1) go a step further and rule that one can also not use siluk before eirusin, because at that time they have no relationship and there is no connection between the man and the woman’s assets, even if they later marry. Only when one is destined to acquire a right, can he use siluk to avoid acquiring this right. Therefore, in order to utilize siluk, it is necessary for the husband to state, precisely when the future husband and wife are in a state of eirusin, that he waives his right to inherit his wife’s assets.
We should note that by using siluk all future problems concerning inheritance are avoided since the husband is totally removed from the inheritance and the wife’s heirs before she got married remain her heirs even after full marriage.
A major difficulty in applying siluk nowadays is that the marriage process has changed since the days of the Gemara. In the time of the Gemara there was a period of time, typically a year, when the woman was an arusa and any time during this period the husband could do siluk. However, for the last few hundred years we do erusin and chupa-full marriage at the same time. It seems that there is no time when the husband can do siluk since before the ceremony it is too early since she is not yet an aruso, and afterwards it is too late because she is fully-married. Since this issue is relatively common and it is difficult but important to find a solution, the poskim have offered several approaches to solve this problem.
The Chasam Sofer (res. EH 2, 166) extended the time period when one can make siluk if the parties made tenaim with penalties in case either party reneges on his commitment to wed and to give assets to the couple. His rationale is that the only reason the Rishonim required erusin is because before erusin there is nothing obligating the bride’s father to give anything. However, tenaim do create such an obligation. Therefore, the Chasam Sofer ruled that after tenaim, siluk can be done. Since tenaim are done before the marriage ceremony, this is a solution to the problem, since the future husband can do siluk between the tenaim and the chuppa.
The Chavos Ya’ir (res 50-52) discussed the issue with several gedolim of his day. One of these gedolim, Rav Mordechai Zisskind, ruled that one can rely on the opinions that a lady only becomes fully married when she and her husband eat together. The Chavos Ya’ir also investigated the custom in Frankfurt and was told that the custom was for the husband to make a kinyan on his siluk between the time that the mesadeir kiddushin recited the brocho on erusin and the sheva brochos that are recited under the chuppa. (This is the way the Chasam Sofer cites their custom. However, the Chavos Ya’ir writes that siluk was done after the brocho and before the chosson gave the ring which is difficult because normally the chosson should not talk then. Perhaps here it is permitted because the siluk was necessary for the marriage just like one who says hamotsi may ask to bring salt before eating bread.)
The Chasam Sofer also supports the Frankfurt minhag. He argues that even though it is possible for the husband and wife to become fully married by virtue of them standing under the chuppa at the time when the ring is given, if they don’t want to become married until later, they do not become married automatically. Therefore, since they want to do siluk, they can push off becoming fully married until sheva brochos are recited under the chuppa, or upon eating together.
We note that these gedolim were discussing a first marriage. In a second marriage the solution of Rav Mordechai Zisskind is more straightforward because, based on the Yerushalmi, we rule (EH 64, 5. This point is discussed at length by the Mishno Beruro 339, 32.) that in order to be fully married the wife must enter the husband’s private domain, with no one else at all present. This is the ruling of the SA concerning marriage right before Shabbos. Since one is not allowed to wed on Shabbos, in the case of a second marriage, the husband must bring his wife into his private property with no one else present before Shabbos.
Thus, the very best time to do siluk if it is the woman’s second marriage is after her new husband put the ring on her finger and before the sheva brochos that are said under the chuppa.
The above discussion explains what you should have done.
Since your husband is co-operative, what you can do now is to write a proper will that conforms with Torah-law, allocating your assets as you wish and have your husband also sign the will.
Before we explain why this will solve your problem, we have to clarify briefly what is written in a proper will. (For much more detail see Mishpat Hatsavo’o, vol 1 page 21-22.) In a proper will, one thing that the one who writes the will does is to make a kinyan that immediately transfers all the assets that he (or she) currently owns to his beneficiaries according to the division prescribed in the will, in a manner that does not stop him from continuing to control these assets. Since this kinyan only helps for assets that are currently owned by the one making the will and for assets that are acquired afterwards, the second thing the one who writes the will does is to create a large conditional obligation upon himself, payable an hour before death, to someone who is not an inheritor under Torah law, e.g. his daughters in case the inheritors of the husband do not carry out this will. Since if the will is not carried out the inheritors will receive nothing, they will carry out the will.
The reason it is critical for your husband to sign your will is that without his permission you do not have the right (EH 90, 9) to give your assets to others or create obligations and your will is void if you predecease him. However, if he gives you permission, you can give presents (EH 90, 10) and obligate yourself and your will is valid. By signing on your will, he shows that your will was written with his permission. There are other things that can be done but this is the simplest. We note that your children will acquire your assets immediately if you predecease your husband, and not just after his eventual passing.
