Rabbi Mordechai Willig
Rabbi Mordechai Willig

Inheritance Without a Fight: Writing a Will in Modern Times

I

Cham said to his brothers, "Adam had two sons, and one killed the other because of the inheritance of the world" (Rashi, 4:25)

Unfortunately, arguments within a family over inheritance continue to this day. Even within the halachic community, governed by the Torah's clear laws of inheritance (Bamidbar 27:7-11), families are sometimes torn asunder by disputes, large and small financially, yet heated and protracted emotionally.

Sometimes, tragically, it is precisely a lack of appreciation of the Torah's laws which contribute to severe tensions in Orthodox families. The Torah provides that sons inherit their parents, while daughters inherit only if there are no sons. In a world of gender identity, this halacha can lead to resentment and worse by women who feel entitled to an equal share of the estate[1].

The double portion allotted by the Torah (Devarim 21:17) to a first-born son can cause jealousy and worse, especially in a world in which primogeniture is an anachronism. The special status of bechor is the theme of many quarrels, including murder and attempted murder, throughout Sefer Breishis (examples include Kayin (4:8), Yishmael (Rashi 21:4), and Esav (27:41)). The unique position of a first-born son no longer exists in modern society. This leads to animosity over a bechor's double portion.

In the interests of peace within a family, a surviving spouse should arrange that his or her assets be divided equally among the children[2]. However, according to most authorities, a typical last will and testament is halachically ineffective. One cannot bequeath property posthumously (Pischei Choshen 9:134).

Nonetheless, one can indemnify himself to his daughters, a common practice six hundred years ago (see Maharil siman 88). A conditional obligation (shtar chatzi zachar) was used to grant a daughter a half-share (Rama Choseh Mishpat 281:7)

A will should be written to avoid a fight among one's children (see Rama Choshen Mishpat 257:7). A will which calls for the Torah's exclusion of daughters leads to hatred and a split in the family (Gesher Hachaim p.42). Today, bequeathing equal shares to all children is the most likely way to avoid these terrible results.

Women who do not receive equal shares halachically may be tempted to secure them in secular court. This attempt constitutes a violation of the prohibition to litigate in secular court (Shulchan Aruch Choshen Mishpat 26:1), and, if successful, of theft of money which belongs to their brothers. This practice became so commonplace in the modern era that it led to the abandonment of the Rama's shtar chatzi-zachar  (Maharsham 2:224:29, cited in Mishpat Hatzava'a p.164).

II

Recent authorities have called for the reinstitution of a note of indebtedness to make a will halachically effective (Rav Zalman Nechemia Goldberg, Techumin vol. 4, p. 350. Rav Feivel Cohen, Kuntras Midor Ledor. See Pischei Choshen, vol. 9, p. 168-175). The will should provide that a token portion of the estate, such as seforim, should be divided according to the Torah's laws (Techumin p. 349). Since the change from the Torah's law is achieved through an indebtedness and not a bequest, it is permissible, just as one may transfer assets during his lifetime (see Nachlas Shiva 21:6).

The document below was drafted many years ago, upon consultation with both rabbonim and attorneys, to make a will halachically effective. While circumstances may vary, peace within a family should be parents' main concern, during their own lifetimes and beyond.


[1] The reason for the Torah's laws are not completely clear, but we believe the Torah is perfect and just. Perhaps the Torah provides incentives for different gender roles by its laws, including inheritance. See "Women in Judaism" (Orchos Aliyah, S.O.Y., Dec. 1995, p. 15)

[2] Halachically, a husband inherits his wife's assets. A wife is entitled only to support from her husband's estate until she remarries (Even Hoezer 93:3). Nowadays, it seems advisable that the wife should inherit her husband's assets. In the common case of joint ownership of a home or other assets, the surviving spouse is likely the sole owner according to halacha as well. Otherwise a note of indebtedness to one's wife can achieve the same net result.

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Note: a there is also PDF version of the document below available.

Introduction

Jewish religious law does not recognize the validity of a will. Except for unusual circumstances, one cannot arrange for his estate to be divided in a manner different from Torah law. However, by creating a conditional obligation, one can achieve the same net result as that of a will and other government laws, in a way which conforms to Torah law.

A person who writes a will should obligate himself to pay a sum of money greater than his total assets. It is stipulated that the obligation is retractable, and is not payable until one moment before death. Therefore, the obligation has absolutely no effect during one's lifetime.

If one wills his entire estate to one person, e.g. to his wife, he should obligate himself to pay her a sum of money greater than his total assets. In such a case, paragraph two in the obligation form should be omitted.

If the will includes many persons, the obligation is made to the prime beneficiary, or several beneficiaries. In this case it is further stipulated that if the Torah heir(s) carry out the terms of the will and other government laws, then the obligation is null and void.

The obligation becomes effective when the form below is executed and delivered to the beneficiary or any other party (e.g. a rabbi or a Jewish attorney) who receives it on the beneficiary's behalf even without the beneficiary's knowledge.

THE OBLIGATION

I, the undersigned, hereby obligate myself to______________________________________________________________________the sum of_______________, effective immediately, but not payable until one minute before my death, on the condition that I do not retract this obligation in writing at any time prior to my death. All the property, which is mine at that time, both real and personal, should serve as security for the payment of the said obligation.

I hereby stipulate that my heirs, as defined by the Torah, shall be given the option of paying the above obligation, or, in lieu thereof, of carrying out the terms as specified in my last Will and Testament and, in addition, carrying out all transfer of property upon my death which are considered "non-testamentary transfers" in accordance with applicable laws. If my Torah heirs abide by the terms of my will and aforementioned State laws, then the above obligation is null and void.

The above obligation is undertaken by a Kinyan Sudar in a Beis Din Choshuv (A proper means of transaction in an important Jewish court). The above condition(s) is (are) made in accordance with the laws of the Torah, as derived from Numbers Chapter 32.

Signed this_________________, 20__ at ____________________________________

(signature)_________________________________________________