A Secular Will Recognized By Halacha

By Rabbi Aryeh Citron

Inheritance by Torah Law

According to Torah law one’s estate is inherited solely by one’s male children (or their progeny if they are deceased). A firstborn son receives a double portion. If one has no sons, one’s daughters (or their progeny) receive the inheritance. The estate of one who dies childless is inherited by his father, paternal brothers, or their progeny. One who has no children or brothers is inherited by his sister.

The estate of one who has no children or siblings is inherited by his paternal grandfather, paternal uncles or their progeny (i.e., his cousins). A husband inherits a wife but a wife doesn’t inherit a husband. (As a widow, though, she is to be supported by the estate indefinitely and has certain other rights based on her Ketubah.) [See Choshen Mishpat Siman 276 and 277 for more details about this matter.]

By Torah law, a will which changes the terms of the inheritance from that of the Torah’s rules (as explained above) may be invalid depending on various factors [see ibid, Siman 281].

The Problem

One who wishes to distribute his estate in a manner that differs from the above Torah arrangement, and makes a will enforceable by the law of the land, may be causing his heirs to violate the Torah’s laws.

Presumably the beneficiaries will receive the share bequeathed to them as per the local state laws. If according to the Torah’s laws, this money is not due to them, they are in effect stealing it from those to whom it does belong.

In many cases the Torah assigned heirs who are receiving less due to the legal will, are happy to fulfill the wishes of their parent. As such it can be considered that they gifting to others what is due to them. But there may be cases where the heirs are not happy to part with the amount the Torah allocates to them, despite their parents’ wishes. In addition, minors are halachically unable to give gifts. As such, in the case of Torah heirs who are minors, following the legal will instead of the Torah’s guidelines might be considered stealing.

Arguments for the Efficacy of a Legal Will

There are several opinions that say that a secular will can be halachically binding. Their arguments are presented briefly below. However, as will be explained, there is reason to dismiss every one of these arguments. As such, it behooves a person who writes a legal will to find a way to ensure that the disbursement of his assets does not contradict halacha.

It is a Mitzvah to Follow the Wishes of the Deceased

According to our sages, it is a Mitzvah to fulfill the will of a deceased person [Y.D. 252:2]. As such, when one reveals his wishes by writing a secular will, it would seem that the heirs are obligated to follow those wishes.
The Halacha states, however [ibid], that the above applies only if, at the time of expressing his wishes, one gives his property to a third party and entrusts that person to fulfill his wishes. Since this is not usually the case, this concept would rarely apply.

In addition, some say that the Mitzvah to follow the wishes of the deceased is not incumbent upon minor heirs who have not yet reached the age of obligation of mitzvot [Ran on Gittin 13a and Erech Lechem on ibid]. According to this opinion a secular will is invalid by Torah law in a case where some (or all) of the halachic heirs are minors.

The Words of a Person on His Sickbed are Considered Contractually Binding

According to Jewish law the instructions of a person on his sickbed regarding his estate are considered legally binding [see Bava Batra 156a and b]. This is true even if no kinyan (legal mode of transfer) is made. Some opine that even the instructions of a healthy person regarding the disbursement of his estate are considered final as if a kinyan was made [Mordechai, Bava Batra, ot 591]. According to this opinion, the instructions given in a will are halachically binding.

Most authorities, however, are of the opinion that the above rule applies only to one who distributes his estate while on his sickbed. It was only in this case where the sages established that we follow his instructions lest he become upset about the matter and become even sicker [Tur and Bait Yosef, Chosen Mishpat, end of Siman 250]. As such, if a healthy person makes a will that changes the amounts that each party inherits, it is not halachically binding.

The Law of the Land Is the Law (Dina DeMalchusa Dina)

In some areas of monetary halacha, the Torah recognizes that one must follow the law of the land [see Encyclopedia Talmudit, entry Dina DeMalchuta]. As such, it can be argued that a will recognized by state law should automatically be effective by Torah law.

In fact, however, the principle that one must follow the law of the land applies only to paying taxes and to monetary cases where the law of the land doesn’t contradict the law of the Torah [Shach C. M. 73:39]. In cases where following the law of the land contradicts any of the Torah’s laws (e.g., the laws of inheritance), one should follow the law of the Torah. As such we have not yet resolved how a secular will can be acceptable according to halacha.   

Assuming a Debt

The method that seems halachically acceptable is to write up the following document when making a secular will: The method by which the document works is that it states that the testator (the one making the will) assumes a debt upon himself or herself which will be payable from the estate and is only due a moment before his death.

This debt should be more than the amount that he is giving to the non-Torah heirs (or the amount he is giving to a Torah heir that is beyond what the Torah would grant him). If, for example, he is giving $200,000 to people other than his Torah heirs, he should accept a debt upon himself that is greater than that sum. The debt is assigned to be payable to a particular Torah-observant Jew whom one trusts. (Practically, this debt will never be collected.)

He then stipulates that if his heirs follow the dictates of his secular will, he frees them from the obligation to pay the debt he assumed. In order to avoid paying this debt, the heirs will definitely choose, of their own accord, to follow the dictates of the secular will. (The amount due to the debt is greater than the amount they are giving to the other heirs, so they will obviously choose to give the money to the heirs.) Since the heirs will do this willingly, the money that is given to others will not be considered “stolen money.”

Historical Precedent

The idea of writing such a document is not new. It was, in fact, commonly done in Europe where people would write up such a document in order to ensure that their daughters would receive a portion of the inheritance. (Typically, they would receive half of what the sons would receive, not including real estate and sefarim.) [See Rama, Choshen Mishpat, 281:7].

Consider before Changing

Before writing the text of this document, I would like to point out that, generally, our sages frowned upon one who changes the order of inheritance as dictated by the Torah [see Ketubot 53a and C.M. 182]. As such, one should consider carefully before writing any will that changes the order of inheritance.

The purpose of this article is not to condone the writing of such wills. Rather, the purpose is that if, for whatever reason, one has (or plans to have) a will which differs from the Torah’s inheritance, he should, at the very least, write the document below in order that the heirs not be stealing property which is not halachically theirs. In practice, one should discuss the details of how to distribute one’s estate with a Halachic authority.

Points to Consider

Here are some situations in which it is permissible (at least according to some opinions) to change the order of inheritance given by the Torah. [In addition, the correct method of kinyan (transfer) must be done so that the changes are recognized by the Torah as explained above.]

Giving to the Daughter

It is permissible to give some of one’s inheritance to one’s daughter so that she will find a good shidduch [Ketubot ibid and Responsa of Maharam Mintz 47]. Some say that this holds true even after the daughter is married [see Tosfot D.H. Hashta on Ketubot ibid]. The logic is that if people know that a woman will eventually inherit from her parents, they will be more likely to marry her. (But see Chatam Sofer, Even Ha’Ezer 147 that one should not treat one’s sons and daughters as equal heirs since the Torah does not do so.)

Leaving a Significant Amount for the Torah Heirs

Some say that one may give part of one’s  inheritance to people who do not inherit by Torah law as long as one leaves a significant amount to each of the heirs who should inherit according to the Torah [Tashbetz quoted by Ketzot HaChoshen 182:2]. Others disagree [see Pit’chei Teshuvah 182:2].

Giving to Tzedakah

It is not only permissible but praiseworthy to leave significant amounts of money in one’s will for Tzedakah [Rama Y.D. 249:1 and Ketubot 67b]. Some say that one should not give more than a third of one’s estate at this time [see Hagahot Rabbi Akiva Eiger on ibid in the name of the Tashbetz] while others permit giving up to half [Aruch HaShulchan Y.D. 249:1]. Their reasoning is that by giving half, one is dividing his estate equally, one portion – the tzedakah – for one’s soul, and the other portion for his heirs.


Text of the Document

Here is the text of the document one can make in order to have his secular will be accepted by Halacha. The footnotes explain the necessity of some of the language of this document. Below are instructions as to how to execute this document and render it Halachically effective.

 I___________________________, residing at _________________________, on the ____ day of the month of ______________ in the year of _______________, hereby declare the following:
In the event that ———————————————————————- [1]
A. any of my Torah heirs (as defined in paragraph 2 below) will not give (proportionally) of their respective shares in my estate under Torah law [or from the proceeds of the sales thereof] in order that the terms of my last Will and Testament (”Will”) and the terms of all other transfers of my assets upon my death effective for purposes of secular law [including but not limited to, assets owned jointly with rights of survivorship and assets held in any trust or trusts (“Other Transfers”)] be complied with and —————————————–
B. the condition set forth in paragraph (3) below is complied with, and C. In the event that my Torah heirs die before the distribution of my estate, then the conditions set forth in this note shall devolve upon their Torah heirs or the Torah heirs of their Torah heirs] ———————————————————then I hereby assume upon myself, as of this moment, an indebtedness in the amount of $__________________________[2] (“the debt”) to ______________________________[3] who resides at __________________________________ (“the obligee”). This debt shall be payable in full one moment prior to my death. ——————————————–
2) The term “Torah heirs” shall mean those individuals who are entitled to inherit all or part of my estate under the Torah and the code of Jewish Law. —– 3) In the event that certain Torah heirs will give (proportionally) of their respective shares in my estate under Torah law [or from the proceeds thereof] in order that the terms of my will and all other transfers be complied with, the obligee shall release those Torah heirs from any obligation under the debt.——
4) All real and personal property and all monetary assets that I now possess or may hereafter acquire are obligated to secure this debt. —————
5) Any portion of the debt not paid prior to my death shall be payable from my estate even should the male Torah heirs be less than thirteen years of age and the female Torah heirs be less than twelve years of age. ———-
6) A simple oral statement (even without an oath or other mode of affirmation) by the obligee asserting that the debt is valid and unpaid shall be believed against any assertion even by oath to the contrary by me, my Torah heirs or others, unless a receipt signed by two witnesses and otherwise valid under Torah law is presented, or unless this document has been torn by a duly constituted Bait Din (Jewish Court).[4] ——————————————————
7) This document shall constitute full evidence of the debt and all the provisions of this document shall apply even if it be found in my possession and was not yet released from my hand. —————————
8) The debt and all other statements made herein have been made of my own free will without any compulsion. ———————————————–
9) The debt and all other statements made herein have been undertaken in a Jewish court of high standing (Bait Din Chashuv) through an instrument legally fit to effect a transaction (”Kinyan Suddar”). ——————————
10) This document has been written and effected in a manner that gives it the full binding force of Jewish notes of indebtedness that have been made in accordance with the enactments of the Talmudic sages. This document is not to be regarded as an indecisive contractual obligation (“asmachta”) nor as a stereotyped form (“Tofsei Dishtara”). ————————————
11) On the other hand,[5] in the event that ———————————————
A) all of my Torah heirs will give (proportionally) of their respective shares in my estate under Torah law [or from the proceeds thereof] in order that the terms of my will and all other transfers be complied with, or —————
B) the obligee fails to comply with the condition set forth in paragraph (3) above, or ———————————————————————
C) no will is admitted to probate (nor is it filed in a proceeding to manage my estate without formal court administration) ——————————–
then the debt set forth herein shall be null and void and of no effect whatsoever, for the debt was not entered into under these conditions. ————
12) All of the above conditions have been effectively stipulated inasmuch as their nature and formulation are consistent with the Torah laws regarding conditions (”Tena’im”) – which laws are derived from the conditions that were imposed on the tribes of Gad and Reuven (“Benai Gad” and “Benai Reuven”) upon their entering the Land of Israel (“Eretz Yisrael”). ——————————–
__________________________________
Signature

How to Make the Document Effective

After filling out the details in the above document, one needs to make a formal kinyan (ritual act of acquisition) in order for the debt to be effective. The kinyan should be a kinyan suddar (a kinyan effected by the acceptance of a scarf or some other object as a symbol of the transaction).

This kinyan is done in the following manner: The testator (the one making the will) declares to the obligee (the person towards whom he is assuming the debt) his intention to execute a kinyan suddar in order to establish an indebtedness upon himself.

The obligee should then give the testator an object (a pen, a hat or the like) with the intent of entitling himself thereby to the indebtedness in symbolic exchange for the object. The testator should then raise the object twelve inches (three tefachim). He has thus acquired the object and established the debt upon himself. The testator can then return the object to the original owner (the oblige).

If the obligee will not be present at the transaction he can appoint a fellow Jew as his agent (“shaliach”) to execute the transaction on his behalf. The agent’s pen or hat should be used for the kinyan.

The testator should then sign the note and deposit it, along with a copy of the will, with a trustworthy individual. One may also keep a copy for oneself.

A Will By One’s Wife

One whose wife is writing a separate will should make a similar document in which he obligates himself to pay a large sum of money should he not follow the instructions in her will. This is because, according to Halacha, it is the husband who inherits his wife’s estate. The details of this document can be found in the book mentioned in the beginning of this article.

Other Details

There are several other details that one should bear in mind regarding this document but, for the sake of brevity, I am leaving these out.
For more information, see Kuntres MiDor LaDor by Rabbi Shraga Feivel Cohen (New York 2008). 

May we merit to Live Long and Healthy Lives and to See Moshiach Speedily in Our Days When Death will be Swallowed Forever!

[1]  The purpose of this line is simply so that there not be a blank space in the document. This would be problematic as it would allow people to add other things to the document that are not part of the agreement.]

[2] See above that this amount should be larger than the amount one is leaving to non-Torah heirs.

[3] The name of a trusted member of the Jewish faith should be inserted here, this person should not be one of the Torah heirs.

[4] Without this clause the Torah heir could claim that he already paid the debt and could therefor revert to receiving the full amount dictated by the Torah.

[5] The reason for the repetition of these conditions is so that the conditions conform with the standard of conditions that were stated by the agreement with the sons of Gad and Reuven (see below). In these, both the positive and negative sides of the condition were stated, with the positive side being stated first. I.e., first that the debt will be effective (if the heirs do not conform to the secular will) and then that it will not be effective (should they choose to conform to the will).
In addition, the condition was stated before the action which results from the condition. I.e., if the heirs do not follow the will (condition) then the debt will be effective (action).

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Discussion
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  1. What if the parents already passed away, leaving secular wills? Do the daughters have to pay back the sons who should
    have gotten the money or property?

  2. This shtar always seemed odd to me. The “debt” is a fake debt. There is no debt, it is a symbolic debt. Seems like posturing to me. Either follow the Halacha scrupulously in the will, or consider other estate planning options, such as creating lifetime irrevocable trusts that hold the majority of the assets. At least the trust is an actual transfer, not a fake gift. And the trust is not being created to circumvent Halacha. People create trusts for lots of other reasons.

    A jointly owned asset with right of survivorship does not enter one’s estate. The very nature of the title means that both owners own the whole asset together and when either owner dies, the entire asset belongs immediately to the survivor. Said joint owner cannot leave their ‘share’ to anyone in their will, whether halachic beneficiary or not. There is no proprietary interest to leave, it is gone upon death. Is the article questioning whether it is halachically permissible to own a house with one’s spouse, as joint owners with right of survivorship?
    I have not accessed the recommended reading and sources referenced in the article, the above are thoughts based on the article.

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