This week’s article delves into the topic of prohibited wills. What prohibition is involved in writing a will that contradicts Torah laws of inheritance? Is such a will fully prohibited, or merely discouraged? Is it permissible to assist in drafting such a will? Should testators allocate funds for charity, to support talmidei chachamim, or for hachnosas kallah? If so, what percentage of an inheritance should be designated for such purposes? When is giving a dowry considered a mitzvah, and when might it be inappropriate? What should be done with a rebellious or disrespectful son? Is there a difference between a child who is estranged from his parents and a non-observant child? And on the receiving end, is accepting a portion of a will that contravenes halacha permissible? These and other questions will be addressed in this week’s article.
Wills not in Accordance with Halacha
In our previous articles, we discussed the importance of drafting a will in accordance with Torah inheritance laws. This week, we focus on wills that diverge from those laws. People might want to divide their estate equally among both sons and daughters, or between a firstborn son and the rest of their children; bequeath all assets to their spouse; leave an inheritance to an adopted child; or disinherit their children for not observing Torah and mitzvos or for showing them disrespect. Is there a prohibition against such wills?
We will start by examining several stories from the Gemara and analyzing them with the help of the commentators. Finally, we will present how contemporary halachic authorities apply the laws to real life.
The Prohibition of Diverging from the Laws of Inheritance
The Mishnah (Bava Basra 133b) indicates that a will bequeathing all possessions to a stranger, excluding one’s children, is valid and binding, provided it meets halachic requirements (either through a gift made during one’s lifetime, or on their deathbed). However, the Mishnah also notes that while such a will is legally valid, it is not looked at in favor by the Sages.
As discussed in last week’s article, the Gemara (Bava Basra 133b) reports that Shmuel advised his student Rav Yehuda not to be present at the transfer of an inheritance from one son to another, especially from a son to a daughter. The presence of a prominent rabbi could legitimize the act, which the Sages disapprove of. Some authorities extend this prohibition to include testifying about or assisting in the drafting of such a will.
Despite the Mishnah’s implication that this is more of a disfavored practice rather than a complete prohibition, many major halachic authorities consider it a full prohibition (Rosh, Hilchos Nachalos 84:1; 85:3; Tur, Choshen Mishpat 282; Tashbetz 3:190; Rabbi Eliyahu ben Chaim 1:118; Sdei Chemed Volume 3, Section 30:3:1, and others). The Sdei Chemed argues based on the Levush (Choshen Mishpat 282) that this prohibition is rabbinic.
The Yerushalmi (Bava Basra 8:6) cites Rabbi Aba bar Memel, who says that someone who bequeaths his possessions to others is said to have his sins accompany his bones (Ezekiel 32:27). The Rif and other Rishonim discuss this interpretation, and the Chasam Sofer (CM 151) explains that the Yerushalmi views it as a severe prohibition, not as a merely undesirable practice.
Practically, halachic ruling aligns with the first opinion mentioned in the Mishnah — that inheritance should not be transferred from sons, even if they are not behaving properly (Rambam, Hilchos Nachalos 6:11; Shulchan Aruch, Choshen Mishpat 282:1). Nevertheless, the question remains: When does this prohibition apply?
Various stories from the Gemara provide insights into this issue and help clarify the rules surrounding inheritance and wills.
Rabbi Yosef ben Yoezer
Rabbi Yosi ben Yoezer was the Nasi whose only son did not behave properly. His father disinherited him of his estate – a large vessel filled with gold coins. Instead of leaving it for his son to inherit, he dedicated it to the Mikdash. The full story and lessons we can learn from it are analyzed in this week’s editorial, but the Gemara’s conclusion is that Yosef ben Yoezer followed Rabbi Shimon ben Gamliel’s opinion, which was considered appropriate in his time. However, the halachic consensus is that it is not the preferred practice.
Bequeathing an Inheritance to a Talmid Chacham
Another intriguing story is recorded in the Gemara (Bava Basra 133b) involving a man whose sons were behaving improperly. In his will, he bequeathed all his possessions to Rabbi Yonason ben Uziel, a leading scholar of his generation. Rabbi Yonason ben Uziel chose to sell one-third of the assets to meet his own needs, allocate another third for the Beis Hamikdash, and return the remaining third to the deceased’s sons. In this way, he honored the deceased’s wish by using part of the estate to support himself, contributed to the Beis Hamikdash to elevate the deceased’s soul, while also providing a substantial portion to the sons. This approach allowed the sons to benefit from their father’s estate and continue his life’s mission, despite their present behavior.
Shamai Hazakein argued that Rabbi Yonason had no authority to return the inheritance to the sons because the deceased had explicitly wanted to disinherit them because of their behavior. Rabbi Yonason ben Uziel contended that once he had acquired the assets, he had the right to manage them as he saw fit and was no longer bound by the deceased’s wishes. Ultimately, the Gemara concludes that Shamai conceded to Rabbi Yonason ben Uziel’s argument.
A similar story is found in the Yerushalmi (Bava Basra 8:6) regarding a man who entrusted his assets to Rabbi Aba bar Memel. In his will, the man specified that if his sons behaved properly, they would receive half the inheritance, with the other half would remain for Rabbi Aba. After the man’s death, his sons did not behave properly, yet Rabbi Aba bar Memel still gave them half of the inheritance. The sons attempted to challenge the will, but Rabbi Aba bar Memel warned them that by doing so, they would only confirm their improper behavior, which could result in him keeping the entire inheritance for himself.
Rabbi Eliyahu ben Chaim (Volume I, 118) deduces from this story that while beis din lacks the authority to coerce or excommunicate a person who disinherits his sons through a will, it is nonetheless appropriate for them to discourage it. Consequently, Rabbi Yonatan ben Uziel and Rabbi Aba bar Memel returned a substantial portion of the inheritance to the wayward sons despite the deceased’s wishes, while also retaining a significant sum to honor the deceased’s wishes and elevate his soul.
The Chasam Sofer (CM 151) explains that Rabbi Yonason ben Uziel and Rabbi Aba bar Memel did not want to facilitate a transgression of transferring an inheritance from its heirs, so they ensured the sons received a significant portion of the inheritance, even though it contradicted the deceased’s wishes.
The Erech Shai (CM 282) proves from the fact that Rabbi Yonatan ben Uziel and Rabbi Aba bar Memel took a portion of the inheritance for themselves that although the deceased may have transgressed a prohibition, the beneficiaries are permitted to accept the inheritance, and the prohibition applies only to the testator.
Leaving Assets to Daughters Through Gifting
Is it permissible to transfer significant portions of his assets as gifts during one’s lifetime, or is it also considered a transfer of inheritance? This issue comes to fore particularly in gifting daughters. The Gemara discusses whether it is appropriate to give a daughter a large dowry upon her marriage where it is clearly a mechanism for transferring a significant portion of one’s inheritance to her.
The Gemara (Kesubos 52b) states that Rabbi Shimon bar Yochai taught that although the Torah mandates that sons inherit their father and not to daughters, there is a mitzvah to give a significant dowry to daughters upon their marriage. This is learned from the pasuk in Yirmiyahu (29:6): “And give your daughters to husbands, that they may bear sons and daughters, and that you may be increased there, and not diminished.” When a person gives his daughters a large dowry, it makes marrying easier for her. Therefore, the sages instituted that one should give 10% of his assets as a dowry to each daughter when she marries, based on his financial situation at that time.
On this topic the Gemara recounts the following story: Rav Papa’s son was engaged to Aba Sura’s daughter, and traveled to Aba Sura’s city to write the kesuba for his daughter. One of the great Amoraim, Rabbi Yehuda bar Meimar, went out to greet him to honor him, and together they walked to Aba Sura’s house. When they reached the door, Yehuda wanted to take leave of him, but Rav Papa insisted he accompany him inside.
When Rabbi Yehuda refused, Rav Papa said: “If the reason for your refusal is because you do not want to be present at the kesuba signing, because Aba Sura will be transferring a significant part of his assets to his daughter, and you are concerned that it is forbidden for an important person to be present (at the inheritance transfer), know then, that giving a dowry is a rabbinic ordinance and a mitzvah, as Rabbi Shimon bar Yochai taught.”
Rabbi Yehuda argued that this mitzva is only when the gift is given voluntarily, but not under duress. “If I am present,” he argued, “it will pressure Aba Sura to give a substantial dowry.”
Due to Rabbi Yehuda’s discomfort, he did end up accompanying Rav Papa into the house, but sat on the side and remained silent throughout the entire process. When Aba Sura committed to a certain amount and saw that Rabbi Yehuda said nothing, he thought that Rabbi Yehuda was angry with him for offering such a humble dowry to Rav Papa’s son. In response, Aba Sura gave all of his assets as a dowry to his daughter as a sign of honor to Rav Papa.
Rabbi Yehuda still did not react, so Aba Sura said, “Believe me, giving all my assets is not enough.” Rabbi Yehuda replied, “If you had asked me, I would not have recommended even the initial sum, and I would have advised leaving a more respectable inheritance for your son. However, I remained silent to avoid putting pressure on you.” Aba Sura then asked, “In that case, should I cancel my commitment?” [The commentators explained why it was still halachically possible to cancel the commitment]. Rabbi Yehuda responded, “No, if you committed, you must keep your word. It is better to give all your assets to your daughter than to be considered untrustworthy by not keeping your promise.”
This story seems to teach us that even giving a dowry during one’s lifetime has issues related to transferring inheritance. Is one actually forbidden to give gifts as they see fit?
The Nachalas Shiva (Shtaros 21:2) writes that just as the Sages permitted giving a daughter a large dowry to enhance her chances of finding a match, it also became customary to specify in a will that the daughter would receive half of a son’s portion (the “Half-Male Contract” discussed in previous articles). There is no prohibition involved in this, and he explains why: “When a son-in-law sees that his father-in-law considers him almost like a son and gives him a Half-Male contract, his wife will be dear to him at all times.” Since it is a father’s obligation to ensure his daughter has a successful marriage, gifting her with a dowery or signing a Half-Male Contract is in accordance with that obligation.
On the other hand, most authorities (Rosh 85:3; Taz EH 113:1; Knesses HaGedolah CM Hagahos Tur 282, and others) believe there is no prohibition in transferring part of one’s assets during one’s lifetime, and the prohibition only applies at the time of death. Various explanations have been given to elucidate the story in the Gemara. Two notable interpretations are:
Rabbi Aryeh Leib Tzintz (Tiv Kiddushin 58:1) who explains that the prohibition refers only to pressuring someone to give a large part of his assets to his daughter, which would reduce his rightful heirs’ inheritance. However, if one freely chooses to do so without coercion, there is no prohibition.
The Minchas Yitzchak (Vol. 3:135, 13) explains that while Yehuda bar Merimar believed one should not give a very large dowry to a daughter due to the aforementioned prohibition, the halacha follows Rabbi Shimon bar Yochai. Apparently, Rav Papa believed there is no prohibition involved in writing a particularly large sum in the kesubah. Even though giving all of one’s assets is forbidden, they were unaware that these were all his assets (Kisei Shlomo, Kesubos 52b). Alternatively, giving it during one’s lifetime, not close to one’s death, is also not prohibited.
Donating Inheritance to Charity
The Gemara (Kesubos 67b) tells us about Mar Ukva, who was careful to distribute a lot of tzedakah throughout his life. As he approached death, he requested the ledgers in which he had recorded all his charity donations. Upon seeing that he had given ‘only’ 7000 dinars of excellent quality to charity, he said, “The way is long, and provisions are scant,” (i.e. he felt he hadn’t given enough tzedaka) and he wrote in his will that half of his assets should go to charity. The Gemara asks how it was permissible for him to do so, given the ordinance of Usha that one should not give more than 20% of their assets to charity, and here was leaving behind his orphaned sons. The Gemara answers that the ordinance was in place to prevent one from giving too much and becoming dependent on others, but at the time of death, this ordinance does not apply. Thus, Mar Ukva acted properly when he left half of his assets to charity.
This story teaches us there is no prohibition against bequeathing a significant portion of one’s assets to charity, and on the contrary: it is appropriate for someone fearing the Heavenly judgment to do so.
The Chida (Birkei Yosef, 249:15) cites various opinions on how much one is allowed to give to charity. The majority of opinions maintain that one can donate in their will up to half of their assets to charity.
The Aruch HaShulchan (YD Sec. 249) explains that it is permissible for a person to divide their inheritance between themselves and their heirs, dedicating half for the elevation of their soul, and leaving half for their heirs. The Chasam Sofer (CM 151) writes that the most important thing is to leave a significant amount for the heirs.
Transferring Inheritance – The Prohibition
What is the nature of the prohibition to diverge from the Torah’s inheritance laws?
The Rosh (84:1, cited in Tur CM 282) sharply criticizes a man who wanted to adopt the local custom of leaving his entire inheritance to his eldest son and was seeking a halachic method for implementing it: “It is forbidden for any member of the Jewish nation to even consider this… And anyone who assists in this and supports it is aiding sinners.” Adhering to the local inheritance laws suggests that one regards the Torah’s laws as inferior to those of the gentiles, which is unquestionably prohibited.
This ruling teaches us that it is prohibited to split the inheritance equally between sons and daughters due a liberal approach to equality. However, if one wishes to allocate more to his daughters than to his sons out of consideration for their individual needs, this is permitted. This is similar to the allowance for giving a daughter a larger dowry to facilitate her marriage or to endear her to her husband.
The Tur (CM 282) explains that the prohibition against transferring inheritances from one son to another is rooted in Chazal’s warning: “A person should not change the order of inheritance even slightly to avoid creating jealousy.” Altering the inheritance order is a sure-fire way to sow hatred and animosity among siblings.
Transferring an inheritance from needy heirs to charity is criticized by the Tashbetz (Vol. 3, 190) and deemed forbidden because the heirs are considered “Ani HaMehapech B’Charara” – an impoverished person chasing a crust of bread. This idiom describes a situation where a poor person anticipates enjoying something, only to have it snatched away. Someone who does this is considered wicked, even if it is technically permissible. Also building a synagogue while one’s own heirs are impoverished is considered wrong.
Non-Torah Observant Descendants
The Sma (CM 282) explains that the “bad son” mentioned in the Gemara’s prohibition against transferring inheritance refers to a son who does not honor his father, even if he is careful with other commandments. The Chasam Sofer (CM 151) argues that there is no distinction between a son who violates a single prohibition and one who is generally non-observant. Typically, a Jew who is careful with most commandments but neglects one due to a lack of awareness is still considered observant of Torah and mitzvos. However, for well-known commandments such as honoring one’s parents, this distinction does not apply. Therefore, one should not differentiate between a son who transgresses many prohibitions and one who only transgresses one, and both should inherit their parents together.
One of the Chasam Sofer’s foremost disciples, the Maharam Schick (CM Sec. 43), ruled that it is permissible to transfer the inheritance from a son who has completely abandoned Torah and mitzvos. This is because such a son is unlikely to use the assets appropriately, and it is probable that his children will also misuse their inheritance. Although there is a rare possibility that the grandchildren might repent, this concern does not override the immediate considerations. Similarly, the Dovev Meisharim (Vol. 1, 97) endorses this approach based on his own reasoning, although he refrained from issuing a practical ruling on the matter.
The Igros Moshe (CM Vol. 2, Chapter 50:3) delineates three distinct levels for a ‘bad son’:
- A person who provides his children with a proper Torah education but is not diligent in observing mitzvos, particularly those between man and his fellow. While he may be in a spiritually compromised state, there still remains a reasonable possibility that his grandchildren will be meticulous in keeping the mitzvos. Therefore, no action should be taken to transfer the inheritance away from this son.
- A son who provides proper Torah education to his children and is careful with mitzvos of “bein adam laMakom” but has deteriorated to the level of an ‘informer’—using local authorities to inflict harm, distress, or pain on other Jews—is excluded from the Jewish Nation for certain purposes. In this case, transferring the inheritance away from him could be permissible. While directly causing him financial harm is forbidden, indirectly damaging him is permitted. (The exact definition of an ‘informer’ requires a separate discussion.)
- The third level is a son who is not Torah observant at all, and does not provide his children with a Jewish education. Although there remains a chance that his descendants might discover their roots and do teshuvah, it is highly unlikely, and transferring the inheritance from such a child is permitted.
Leaving Inheritance to Others
Can one leave his heirs only part of his inheritance, and distribute the rest as he sees fit?
The Itur (P. 59:4) and Tashbetz (Vol. 3, 147) cite the Geonim that one who leaves his heirs 4 zuz (enough to live off for one week), is permitted to write off the rest of his possessions to others in a proper halachic will. The Ketzos Hachoshen rules accordingly (282:2) and the Chasam Sofer (CM 151) accepts this ruling.
The Pischei Teshuva (CM 282:1) writes that giving a portion of his assets to others for no reason is prohibited, however if it is for a good reason such as for charity, it is not prohibited. This follows the ruling found in the Gemara Kesubos 67a regarding Mar Ukva who had sons, yet dedicated half of his possessions for tzedakah.
Contemporary Halachic Rulings
The Minchas Yitzchak (Vol. 3, 135:14) notes that although the poskim have advised against writing a “Half-Male Contract” for real estate and seforim which should be reserved exclusively for one’s sons, there is room for leniency. This restriction may apply only to ancestral real estate, not to properties acquired during one’s lifetime. Alternatively, it might only pertain to one’s residence and seat in shul, not to other properties and assets.
Additionally, the Minchas Yitzchak (ibid. 15) states that since the Sages instituted numerous ordinances to benefit a person’s wife, obligating him to ensure her welfare, if one is concerned that without a legal arrangement she might be left destitute, one can leave most of his assets to his wife after writing a significant amount for the heirs.
Additionally, the Minchas Yitzchak (ibid. 16) writes that one may be lenient regarding an adopted son and allocate a portion to him, provided the other sons also receive their share of the inheritance. However, it is preferable to transfer this portion to the adopted son during the adoptive parent’s lifetime.
The Igros Moshe (CM Vol. 2, 50:1-2) encapsulates this discussion: Even though the Chasam Sofer questioned whether leaving a significant sum for heirs to divide according to the Torah’s inheritance laws is sufficient, anyone relying on the Geonim, Tashbatz, and Itur, as ruled by the Ketzos HaChoshen, cannot be considered to have acted improperly. He adds that the prohibition mentioned at the beginning of this article only refers to giving an inheritance to a stranger. There is certainly no prohibition in allocating assets to charity or other purposes, provided there is a justified reason, and a significant portion is left for the sons. The primary prohibition lies in attempting to circumvent the Torah’s laws of inheritance, which is improper even when the distribution is for charity. However, if the intent is merely to gain merits by giving to charity, there is no prohibition as long as a significant portion is left for the children.
He mentions a case of a very wealthy man who left each of his sons $1,000 (the story took place in 1966, when that sum was certainly worth more than 4 zuz in Chazal’s times) and designated the rest for charity in a halachically acceptable and proper will. Even though both the man and his sons were very wealthy, the sum he left them sufficed for the mitzvah of inheritance, allowing the remainder to be allocated to charity to enhance his spiritual well-being.
