Question
We are four brothers and our parents passed away without leaving a will. The major asset that they left us is an apartment which we began renting out after our parents passed away. I am the first-born and am entitled to and will Be'ezras Hashem receive a double portion when the estate is settled. I want to ask if I am entitled to a double portion of the rent that is being collected.
Answer
The Torah states that the first-born is only entitled to a double portion of the assets that are possessed by the deceased while he is alive and not from the assets that accrued to his estate following his passing, which are known as ro'uy. This rule applies to assets that are not removed from the estate, known as tefusas habayis. The way an asset is generally removed from the estate is by distributing it to the heirs. Income that is earned following removal of an asset from tefusas habayis is split based on ownership.
The usual way to divide an asset is by transferring ownership to the heirs. Thus, for example, if you and your brothers would transfer title of the apartment to the heirs and register the apartment as belonging forty percent to you and twenty percent to each of your brothers, you would be entitled to forty percent of the rent since the laws that apply are those of partners (See CM 176, 5). The reason you have an issue is because presently the estate has not been settled.
For the purpose of this article, we will assume that rental income of an estate is classified as ro'uy which is the position of many poskim but is also disputed by many poskim for various reasons and requires a separate article for a full treatment.
We frame the question that you raised as whether it is possible for you to assume legal possession of your extra portion prior to the division of the assets.
It is important to note that a first-born does not automatically acquire ownership of the double-portion. Moreover, a first-born may not want a double-portion because one who receives a double-portion of the assets also receives a double-portion of the liabilities. Therefore, the Gemara writes (BB 124A), the bechor has the right to decline the double-portion and inherit as an ordinary heir and this is the ruling of SA (278, 10). Therefore, if the heirs divide an asset and the bechor does not object when he receives an ordinary portion, he thereby waives his right to a double-portion of this asset and he cannot subsequently sue for a double-portion of that asset.
The Gemara (BB 126A) records a dispute of Amoraim if, when a bechor accepts an ordinary portion of an asset, he thereby waives his entitlement to a double-portion of all the other assets in the estate as well. The Gemara says that the issue is whether the first-born possesses the right to the extra portion of an asset prior to its distribution to the heirs. The Rashbam explains that both Amoraim maintain that one who waives his right to a double-portion of one asset does intend to waive his right to the extra portion of all the assets in the estate. The dispute is whether his waiver is effective. The Gemara rules that the bechor has the right to his extra portion from all of the assets in the estate even prior to their distribution and therefore, when the bechor accepts an ordinary portion of one asset he thereby waives his right to a double-portion of all the assets in the estate.
Following this approach, the Rashbam explains an earlier cryptic statement of the Gemara that "the bechor's protest is effective." The Gemara does not say what the bechor is protesting and what is the result of his protest. The Rashbam explains that the Gemara is saying that if the bechor informs his fellow heirs that he wishes to divide up an asset in order to have the profit from it, to which he would otherwise not be entitled prior to its distribution but will be entitled to after the distribution, his wish is effective so that even if his fellow heirs do not heed his request and do not immediately split up this asset, he is entitled to a double portion of all subsequent profits from this asset, as if it were distributed to the heirs and he received his extra portion of the asset.
The Ran in his commentary explains this Gemara in a somewhat similar manner to the Rashbam. He also understands that the result of the bechor's protest is that henceforth he is entitled to a double-portion profits. However, whereas the Rashbam understood that until the bechor protests he does not acquire ownership of the double-portion, the Ran understood that immediately upon the passing of his father the extra portion is offered to the bechor as a present. Just as one who is offered a present is not obligated to accept the present, so too the bechor has the right to decline the present as the Gemara rules. What actually transpires when the bechor "protests" is that the bechor is clarifying that he wishes to accept the present that was offered to him when the father passed away.
Thus, according to the Rashbam the bechor did not own anything prior to his protest and the content of his protest is that he wishes to claim his extra portion of the asset. But according to the Ran he need not request his portion of the asset because he was already offered the extra portion when his father passed away.
The Kehillas Yacov (BB 9) explains that there is an important practical difference between the Rashbam and the Ran that applies to your situation. In order to understand this difference, it is necessary to introduce an important concept that pertains to jointly-owned property.
The law recognizes two classes of assets: those that can be divided (kedei chalukah) and those that cannot be divided. It is important to clarify that in order to be classified as an asset that cannot be divided, the asset does not have to be physically impossible to divide. Rather, even if from a financial perspective it is not worthwhile to divide, the asset is classified as being not divisible. The Terumas Hadeshen (1, 336), whose ruling is cited by the Ramo (171, 5), rules that if the value of the sum of the parts is a fifth or more less than the value of the whole, the asset is classified as being not divisible. Thus, a single apartment is classified as being indivisible since if you divide a single apartment into four or five parts, the value will plummet since no part will be marketable as an apartment. Therefore, the asset that you and your siblings inherited is indivisible. If an asset is divisible, any partner can at any time demand and immediately receive his share. If an asset is not divisible, a partner can only demand that the asset be converted to being divisible, for example by selling it.
The Kehillas Yacov (beg. words ve'inyan bechor) writes that according to the Rashbam the bechor's protest is only valid for properties that are divisible because the content of the bechor's protest is that he hereby demands that the heirs divide the asset among the heirs. Since one cannot demand division of assets that are indivisible, the bechor's demand has no effect on indivisible assets. For those assets, since the bechor cannot obtain ownership of his extra portion, he is not entitled to the ensuing profits.
In contrast, according to the Ran, from when the bechor protests he is entitled to the profits from his extra portion of the asset in question even if it is indivisible because he already owned his extra portion of the asset upon the death of his father and he just needed to object to avoid losing his extra portion.
The Shiurei Rav Shmuel (BB 2, Yesh Nochlim, section 44) also understands the Rashbam this way and proves that the Rama (Rishon) and the Rashbo also maintain that a bechor's protest is ineffective for assets that are not divisible. (Assets such as slaves, even though they are not physically divisible, are classified as divisible because they can be divided based on days of service.) He proves that Tosafos disagrees and maintains that the bechor's objection is effective even for objects that are indivisible. However, he also proves that Tosafos maintains that even following the bechor's objection he is not entitled to the profits from his extra portion since even following the bechor's protest he does not assume full ownership, and according to Tosafos this is necessary in order for the bechor to receive the profits. (Tosafos BB 126B states this explicitly, a point that is noted as well by Kovetz Shiurim note 400.)
We note further that Rabbeinu Chananeil and the Rambam, who follows his approach and whose position is ruled by SA (278, 9), understood that the content of the bechor's objection is only to clarify that, although he waived his right to a double-portion of an asset, he does not intend thereby to waive his right to a double portion of the rest of the assets in the estate. If one follows this approach there is no basis to grant the bechor a double portion of an asset prior to its division among the heirs.
Based on the above discussion we can say that according to the opinions that rental income is considered ro'uy for which the bechor is not entitled to a double-portion, until you ask for your double portion of the apartment you are certainly not entitled to an extra share of the rental income.
After you ask for your extra portion in the apartment, according to the Rama, Rashbo and Ran you are entitled to a double portion of the rental income. However, according to Tosafos, Rashbam and probably Rabbeinu Chananeil and the Rambam for various reasons (three different reasons) you are still not entitled to a double portion.
The Ketsos (278, 4) discusses a similar but different case involving rental income. He discusses orphans who rented out a slave who belonged to their estate. He only cites the Ran and, based on that, rules that the bechor is not entitled to a double portion of the rental income prior to his protest, but is entitled to a double portion following his protest. Based on our previous discussion, many Rishonim disagree.
Since there is a major dispute if you are entitled to a double-portion of the rental income even after you object, we have to determine how to rule in this case. This also is the subject of a dispute.
The Nesivos (278, 9) maintains that where there is a doubt, the bechor is not entitled to a double-portion because the extra portion is viewed by the Torah as a present from the other brothers to the bechor. In general, if there is a doubt if a present includes an asset or not, the law is that we leave the present with its previous owner.
However, Kovetz Shiurim (BB 398) refutes the proof of the Nesivos and is inclined to rule that the excess portion is divided between the bechor and other brothers. The bechor gets half of the excess portion, and then also gets a portion of the other half from his status as an heir. In your case of four brothers, as the bechor you are entitled to 62.5% of the excess 20%, and each of your brothers is entitled to 12.5% of that extra 20% according to the Kovetz Shiurim.
