Talmidav Shel Aharon
4-5768: Mitzvah 73
November 11, 2007
Mitzvah 73 – It is a positive commandment to render judgment about heritages [inheritance of landed property]
Hafetz Hayim: As Scripture says, “If a man dies and has no son, then you shall transfer his inheritance to his daughter.” (Num. 27:8). However, a son has priority over a daughter; and all one’s male descendants have priority over a daughter. A daughter and all her male descendants take priority over the dead man’s father. Included in this commandment is the rule that a firstborn son is to inherit a double share of the legacy. And a husband inherits his wife’s property buy the law of the Sages, taking precedence over all others in her legacy. It applies everywhere and in every time.
The Torah is very clear about the laws of inheritance. Only sons can inherit from their father. Their first responsibility is to their unmarried sisters and they must provide for them until all the daughters are married even if it means the sons must go begging in the street. If there are no sons, then grandsons inherit down the male line. If there are no male descendants, then the legacy passes down to the daughters according to the ruling given to the daughters of Zelofchad in the Book of Numbers. If the daughter has died, it goes down her male descendants. If there are none, than the man’s father is next to inherit. It goes down his male line.
According to the Torah, the legacy is divided into equal parts according to the number of sons (or daughters if there are none) and the firstborn son gets a double portion and the rest get a single portion. Thus if there are three sons, the estate is divided into four equal parts, two going to the firstborn and one each to the other two sons.
Finally, the Sages noted that there is nothing in the Torah about what happens to a wife’s estate when she dies. They ruled that her entire estate is transferred to her husband upon her death. This assumes that she dies before her husband. If he dies first, she keeps her property and collects the 200 zuzim in land that is promised in her ketubah. This legacy is paid even before the sons inherit. It is the first charge against the estate, even before his other creditors.
This is how Jewish law deals with inheritance. There is no probate and the order cannot be changed. Yet we note that Jacob buys the birthright, the double portion from Esau and both Abraham (who gives the double portion to Isaac and not Ishmael) and Jacob (who gives the double portion to Joseph not Reuvan) ignore this law.
Modern Jewish Law avoids this whole arrangement by using the common will that acts as if the person will give his estate away as a gift to whomever he wishes and there is then nothing for anyone to inherit. In general, financial matters such as these follow the rules of the lands in which Jews live unless they have ritual significance. The laws of inheritance do not and that is why, while they remain in effect, they are most often ignored and an estate is divided according to the wishes expressed in the will of the deceased.
I am sure that if you are or were an attorney with a practice in family law, than all of this may be historically interesting. I am not aware that there is anyone today, who follows these laws.