Avraham Greenberg, a local businessman, is married with four children. All four of his children joined the family business at a young age and helped Avraham grow and nurture it. Though Avraham has for many years ignored his lawyer’s advice concerning the importance of estate planning, he was finally motivated to act one day after learning of the death of a close friend. Avraham immediately called his lawyer and asked him to devise a simple estate plan that will enable his wife to inherit his property when he dies and for his children to inherit his property in equal shares if Avraham’s wife predeceases him.
What Avraham does not realize is that through that simple estate plan he may be violating the Torah laws of inheritance and also causing his wife and children to violate the prohibition against theft.
The Torah’s rules of inheritance, derived in part from the story of the B’nos Tzlafchad, impose particular rules of inheritance. The Torah requires a predominantly male order of inheritance, as follows:
(1) a son and the son’s male descendants inherit a person’s estate;
(2) if there are no male heirs, a daughter and her male descendants can inherit the estate (but the daughter’s female descendants are allowed to inherit if she has no male descendants);
(3) if someone has no descendants at all, then his or her father and brothers can inherit;
(4) a husband inherits his wife’s estate, but not vice versa;
(5) a male firstborn is entitled to a double portion;
(6) a widow is entitled to have her needs and living facilities provided for from her husband’s estate until she claims whatever lump sum might be due under the kesuba or until she remarries; and
(7) unmarried daughters (up to physical maturity at the age of 12) are entitled to support and maintenance from their father’s estate and to a dowry at their time of marriage, which may run as high as ten percent of the total assets left by the decedent.
When describing this inheritance scheme, the Torah uses the words “chukas mishpat”, making this scheme obligatory on all Jews. If a person acts, or fails to act, thereby causing a non-Torah heir to inherit, that person has violated the positive commandment that only males inherit. Furthermore, an heir who accepts property in this manner is considered to have accepted stolen property in violation of the prohibition against theft, “gezaila”.
Not only do Torah rules differ from how people might otherwise choose to distribute their estates, but they are also significantly different from the inheritance laws found in state law. The State of Maryland imposes an order of inheritance that is binding on all Maryland residents who lack a will. Maryland’s law operates as follows: (1) A spouse inherits approximately one-half or one-third of a person’s estate and the children (or the children’s descendants, if the children predeceased the decedent) divide the rest equally; (2) if there is no surviving spouse, then the children divide the estate equally; and (3) if there are no descendants, then the person’s parents and the parents’ descendants will inherit. Thus, because the Maryland law regarding inheritance applies to all persons who die without a Will, someone without a Will may well be violating halacha by permitting his estate to be distributed in a way that is contrary to Jewish law.
Avraham’s lawyer, a frum Jew, explains this problem to Avraham. Avraham first objects, “but what about the rule that dina d’malchusa dina (the law of the land has halachic validity)?” “Doesn’t the state law supersede any halachic requirements for validity of a will and make it effective halachically?” Avraham asks. The lawyer shows Avraham the Shukhan Arukh (Choshen Mishpat 369:11) that this principle pertains primarily to transactions between Jews and the government and/or non-Jews, and does not govern purely intra-Jewish affairs, such as family inheritance, where no public policy considerations are involved. Therefore, according to this opinion, the principle of dina d’malchusa dina cannot supersede the halachos of inheritance.
Avraham is very upset and frustrated. Although he understands the need to comply with halacha, he also feels strongly that his wife should inherit his assets from him after he dies and that his children should share equally in his estate if his wife dies before him. Fortunately, this is not an insurmountable problem.
Avraham’s lawyer explains that Avraham is facing a common problem with various halachically permissible solutions. The most common solution utilizes a special document called a “shtar zachar shalaim”. The shtar zachar shalaim, which is generally referred to as a “halachic will,” allows Avraham to create an estate plan that is consistent with his wishes and that is halachically permissible.
A halachic will supplements, but does not supplant, a conventional Last Will and Testament. After preparing the Last Will and Testament, the person then prepares the shtar zachar shalaim. The shtar, or promissory note, is a document in which the person accepts upon himself a conditional debt. He declares in the shtar that he owes to his wife and/or daughter a very large sum — in an amount that plainly exceeds the value of his estate — and that this debt is enforceable against both himself and his Torah heirs. But the duty to repay the debt has two conditions attached. First, the debt cannot be claimed until a moment before the man’s demise (to ensure that the wife and/or daughter would not be able to claim this debt while the man is still alive). Second, if the man’s sons agree to give their mother and sister a share of their father’s inheritance, then the mother and sister agree to forgo the debt and cancel it. After the father’s demise, the sons would be forced to give their mother and sister a portion of the inheritance or else pay the entire debt (which, being more than the entire inheritance, is an insurmountable obligation). Through the use of the halachic will, each person can create an estate plan that fits his or her own family’s needs and which is also acceptable under Torah law.
Jews throughout the centuries have used halachic wills to deal with civil inheritance laws that run counter to the Torah’s laws. The Rama and other gedolim have used documents like this to help families avoid the infighting that can occur when someone feels like she was disinherited. Furthermore, they were worried that an unhappy wife or daughter may improperly resort to civil courts to secure an equal share. A halachic will allows a person to avoid these three issues and allows one to rest secure in the knowledge that their children will be able to benefit from their life’s work.
This article has been reviewed by Rabbi Tzvi Teichman.
Please note that this article is a general summary of law and omits many important details, footnotes, and caveats. It is no substitute for legal advice from a lawyer based on your particular circumstances. For more information or to speak with a lawyer, please call us at (301) 656-6905 or send us an email at email@example.com.