Our article this week compares the division of inheritance according to Torah law and in civil law. Why is it so important to be aware of the differences? What is the significance of the Torah-mandated order of inheritance, and how does that fit in with the value of following the deceased’s wishes? Why is the inheritance divided among male heirs only? Are adopted children or embryo donations considered heirs? How should an inheritance be used if the will states that the money should be used “in the best possible way”? The following article will address these questions and more.
Inheritance In The Parasha
In last week’s parasha, Pinchas, we learned the Torah’s order of inheritance. In this week’s parasha, Matos-Masei, the Torah teaches us how the laws were implemented in the division of The Land.
Why is it so important to divide an inheritance according to the Torah law? In his sefer of recorded heavenly revelations, Magid Meisharim, Rabbi Yosef Karo quotes the Maggid who explained the following Gemara (Bava Batra 133b): “Do not be in a house where inheritance is transferred away from its rightful heir, even if it is transferred from a wicked son to a good son”: There are deep hidden secrets linked with inheritance, bridging the world of the living and that of the dead. Only the Torah, which is eternal, can properly dictate the laws of inheritance.
Last week’s article discussed the importance of writing a halachic will. This week, we will explore the differences between the Torah’s inheritance order and the way courts in Israel and around the world tend to issue inheritance orders which cause heirs to transgress the Torah’s prohibition of theft. We will also try to grasp a bit of the secrets hinted at by the Maggid.
Testator’s Wishes
People naturally feel a strong sense of ownership over their wealth and property, a sentiment that often extends beyond their lifetime. Having worked hard to earn their assets, it is fitting for their wishes regarding these possessions to be respected, even after their death. Consequently, we tend to believe that true justice and fairness is achieved when the deceased’s assets are distributed according to his desires. This belief is reflected in the practices of most courts worldwide, which place significant importance on honoring the wishes of the deceased.
This perspective is logical and holds a degree of truth, even aligning with the halachic principle: “It is a mitzvah to fulfill the words of the deceased.” However, unlike secular courts worldwide, halacha places relatively less emphasis on this matter. While there are instances where a Beis Din may rule that an heir inherits based on the principle of “a mitzvah to fulfill the words of the deceased,” or may advise heirs to honor the deceased’s wishes by agreeing to a division of the inheritance and signing a deed of sale that legally and halachically transfers their portions accordingly, these scenarios are subject to various conditions.
In halacha, there are other principles that carry significant weight in the division of assets, the first of which, is obviously, the Torah-mandated inheritance order. Here we will explain why it is crucial to uphold the Torah’s order of inheritance and why the Torah prioritizes this order over the deceased’s personal wishes. Then, we will outline how it differs from the laws in most Western countries. Awareness of these differences is essential to prevent very sad outcomes, as discussed in last week’s article. Therefore, we encourage people to use a lawyer who knows how to write a will that is valid in Jewish law.
How To Best Use Inheritance Money
The Rema (CM 252:2; CM 282:1) addresses a compelling scenario where an individual specifies in their valid halachic will for the court to do “the best thing” with their assets, or where a person entrusts money to a friend with instructions to use it in “the best possible way” upon their death. What constitutes the best use of this money? Should it be dedicated to building a synagogue or a yeshiva, distributed among the city’s poor, or used to marry off an orphan bride?
The Rema offers a surprising yet profound answer: the best thing to do with the deceased’s assets is to distribute them to their rightful Torah-ordained heirs. The Rema asserts that fulfilling the Torah’s inheritance laws is the most appropriate course of action, as it ensures the deceased’s wishes are in accordance with the Divine mandate, thereby honoring their legacy in the most meaningful way.
Spiritual Elevation for the Deceased
“Maavar Yabok” is a classic guide for the transition from This World to the Next. When possible, one should follow the procedures outlined in the sefer for a person on his deathbed, including the order of confession, repentance, prayer, and more. The book also references the Rema’s quote and elaborates (Maamar 5 – Imrei Noam Chapter 28) on the concept that the soul of the deceased is ideally passed to their heir, most naturally — from father to son. It suggests that when a person leaves this world, the greatest spiritual elevation comes from their son, who, in a sense, “sets him on his feet” in the Next World. The book cites various customs that fulfill this principle. Since money can “set a person on their feet,” the son, by virtue of his inheritance, can best assist the deceased’s soul in the World of Truth.
Maavar Yabok emphasizes that a son must perform mitzvos with the inheritance money to elevate his father’s soul in the World of Truth. Even if, unfortunately, the son does not behave properly and fails to do so, his inheritance should not be taken from him. Instead, we must pray for his repentance and hope he fulfills his duty.
The sefer further explains that the greatest benefit for a woman is having her husband prolong her legacy and support her in the World of Truth, which justifies why a husband inherits his wife. Conversely, the greatest benefit for a husband is for his widow to continue enjoying his assets as she did during his lifetime, which is why halacha mandates that a widow is provided by her husband heirs with food, housing, and all household needs in accordance with what she had during her husband’s lifetime.
These points illustrate that relationships—both in marriage and in parenting—extend into the Next World, influencing the division of inheritance for descendants and spouses. Just as the obligations of a husband to his wife, and of a wife to her husband differ significantly, halacha differentiates between the inheritance rights of a widower and a widow.
Male Inheritance Vs. Female Inheritance
Rabbi Bezalel, the brother of the Maharal of Prague, elaborates on this concept in his book “Sefer HaChaim” (Chaim Tovim, Chapter 3). He explains that a son is an extension of his father, carrying his name and perpetuating his legacy, life, and mission. This idea is reflected in inheritance laws, which transfer the father’s estate solely to his sons, ensuring the continuity of his legacy in the world.
Rabbi Bezalel further explains that a female is created with her male partner, and her role is to complete the spiritual form of her husband. Therefore, in inheritance laws, a woman does not inherit her father’s assets because her role is linked to her husband’s mission, rather than being an extension of her father.
Money – A Spiritual Asset
In Michtav Me’Eliyahu (Vol. 2, p. 217; Vol. 3, p. 250), Rabbi Dessler explains that everything a person has or receives in This World has a reason and mission to fulfill. There is no such thing as money without purpose; every penny is a tool for serving G-d. Each person has a unique role in revealing G-d’s sovereignty by means of every physical item in his possession. The money one receives is a tool to fulfill mitzvot and reveal G-d’s glory in the world.
The son’s role is to continue the mission and goals of his parents. This explains why many children resemble their parents in abilities, traits, characteristics, and even appearance; these attributes are tools given to them to serve G-d and bring Him glory. Inheritance represents the remaining means the father received in his lifetime that he did not utilize to serve G-d. Therefore, it must be given to the son, whose role is to continue his father’s legacy. For this reason, if a person instructs to do the best thing with their money, it is halachically correct to give the inheritance to the son, whose role is to complete what the father began, as long as the son is not completely removed from Torah and mitzvos.
The laws of inheritance teach us a profound lesson: we are not the owners of the money or possessions we have, but rather its stewards. When we leave this world, the responsibility to continue our duties should fall to our heirs, precisely in the order established by the Torah. Even if we fear that our heirs may squander the funds and not use them for mitzvos, the inheritance should not be diverted from them. They must be given the freedom to make their own choices.
In next week’s article, we will discuss why halacha places emphasis on leaving part of the inheritance to daughters or adopted sons, and why it is also important to allocate a portion of the inheritance to charity.
Inheritance In Torah Law vs. Civil Law
Since civil law is fundamentally based on determining and acting upon the wishes of the deceased (and is thus subject to various distortions born as a result of the narrow interests of legislators), while the order of inheritance according to Torah law is based upon profound Divine principles, there are naturally many significant differences between the two systems. Below are the main points:
- Division between spouse and descendants: In most cases, one’s entire estate passes to the spouse, and only if the spouse is no longer living, or they separated before death, does the inheritance go to the descendants.
– According to civil law, there is no difference between a husband and a wife, and both inherit equally, often before the children.
- Under civil law, the estate is typically divided equally among all descendants, including sons, daughters, and adopted children, without preferencing the firstborn. The legal definition of an heir can vary significantly, taking into account factors such as estrangement, embryo donation, or children born post-divorce who never met their biological father. These statutory interpretations generally diverge from halachic principles.
- Additionally, civil law gives considerable weight to any evidence that can prove the deceased’s wishes.
According to halacha, the inheritance is divided quite differently:
- The wishes of the deceased hold no halachic weight, except in certain cases where the principle of “mitzvah to fulfill the words of the deceased” applies.
- The husband inherits his wife. When there is a husband, children, descendants, or father and relatives receive nothing from the inheritance. A wife, however, does not inherit her husband. Instead, there are numerous enactments securing the wife’s rights to residence, sustenance, and the kesubah payment from her husband’s estate. These rights are secured by the kesubah, which the sages mandated must be agreed upon before marriage. The wife receives her kesubah payment before the inheritance is divided among the heirs. If the inheritance needs to be divided, it is essential to secure the sources from which the wife can receive her kesubah rights.
- If there is no halachic firstborn son, the inheritance is divided equally among all the male biological sons. Daughters and adopted sons do not receive a share in the inheritance. Likewise, a son born from sperm or embryo donation (not from the father) does not receive an inheritance share, even if the father paid for the treatment and considers him his son in every other respect.
- If there is a halachically recognized firstborn (for the definitions of a firstborn concerning inheritance, see Shulchan Aruch, CM 277), the inheritance is divided into two parts: liquid assets available at the time of death, and assets not available at the time of death (e.g., debts, future inheritances, etc.). Assets deposited in a bank, investment fund, life insurance plan, pension, etc. are debated among the poskim.
The liquid assets are divided among all sons, with the firstborn receiving an additional portion. For example, if there are two brothers, the inheritance is divided into three parts: the firstborn receives two parts (66.6%), and the other brother receives one part (33.3%). If there are nine sons, the inheritance is divided into ten parts: the firstborn takes two parts (20%), and each of the other sons receives one part (10%). Non-liquid assets at the time of the father’s death are divided equally among the brothers, with the firstborn having no extra claim on them.
Halachic Enactments to Modify the Inheritance Order
This week’s article gave a brief overview of the Torah’s inheritance order, and the difference between halachic and civil inheritance orders. Inheritance does not depend upon determining the deceased’s wishes, but is based on profound secret. Although we cannot fully comprehend the secret, we touched upon some of the reasons.
Despite the importance of dividing inheritance according to the Torah, the Gemara mentions various modifications enacted by Chazal to adjust the inheritance order, such as a husband’s inheritance, various provisions for a wife within the ketubah, daughters’ sustenance; the provision granting 10% of the assets to a daughter in certain cases, and more. In later generations, other great rabbis enacted further modifications to the inheritance order, which we will not enumerate here. Some of these are: Rabbeinu Tam’s takana, the takanos of Speyer, Worms, and Mainz; the Toledo takanos; and the “half a male share form,” among others.
In next week’s article, we will summarize the considerations for maintaining the Torah’s prescribed inheritance order, and when halacha recommends writing a halachic will to modify the inheritance. We will also explore how to know when it is advisable to follow this course of action.
