The Torah delineates a clear priority list of beneficiaries for inheritance: sons (with firstborns receiving a double portion), daughters, father of the deceased, brother of the deceased, sisters of the deceased, and so on (Numbers 27:8-11, Deuteronomy 21:16-17). Surviving relatives within higher categories get exclusive rights. As such, if the deceased has sons (or even lineal descendants from those sons), then they receive exclusive rights to the estate, with widows and daughters excluded. However, a wide spectrum of 20th-century scholars – including rabbis Yaakov Kaminetsky, Binyamin Rabinowitz-Teumim, Aharon Lichtenstein and Yitzhak Herzog – asserted that this system would regularly cause enmity, hardships or injustice. Additionally some people desire to leave money to their favorite charities. As such, many legal decisors have suggested various proposals for writing a halachic will. These solutions, in turn, rely on legal arrangements that originated in earlier centuries to provide financial support for all family members. Within the Bible, the daughters of Zelophehad (Numbers 27:8) and Job (42:16) receive inheritance portions that preserve their social and economic security. In this spirit, the Sages decreed enactments that helped ensure that single daughters would have a sufficient dowry toward marriage, with one even promising 10 percent of the estate. Regarding widows, the Sages declared that the inheritors must provide continuous support unless she collected her ketuba alimony claims or remarried. This legislative trend was continued in 14th-century Spain when the community of Valladolid decreed that unmarried daughters would receive shares equal to their brothers'. The power of the community to make such enactments was justified on the legal principle of “hefker bet din hefker,” which gives broad legislative powers to the judiciary in financial affairs. Yet once again, this decree was limited to unmarried daughters, with married women excluded from the inheritance. With the founding of the State of Israel, Ashkenazi chief rabbi Herzog, following the lead of certain Moroccan scholars, proposed new enactments that would provide equally for widows and daughters, married and unmarried alike. Many decisors opposed this decree, with some challenging the contemporary authority to issue decrees and others asserting that they were too far-reaching in not leaving sufficient remnants of biblical law. Instead of declaring new enactments, many contemporary scholars have proposed different solutions with classic Jewish financial law. In general, Jewish law attributes much importance to fulfilling the last requests of the dying, including leniencies in the formal rules of transactions. Yet according to Jewish law, the deceased's possessions automatically and immediately transfer to their legal heirs. As such, there is no period of probate, and posthumous orders are invalid, especially if the money was not being held by a third party. Thus legal arrangements must be made to ensure that property transactions or financial obligations take place before death. One possible solution is to write a will that issues “gifts” to female family members (or charities) an hour before death. Jewish law, however, does not allow a person to enact transactions on future assets or those that are not currently in one's possession, thereby creating challenges for this mechanism. One might say that perhaps Jews may simply write a will in accordance with the local financial law since, generally speaking, Judaism recognizes civil monetary laws as authoritative under the principle of dina demalchuta dina. Many medieval decisors, however, rejected this possibility, asserting that inheritance preferences are private arrangements that are not covered by the dina demalchuta principle. Nonetheless, Rabbi Moshe Feinstein asserted that if written in accordance with local laws, a secular will might constitute a valid “gift” that would work before the halachic rules of inheritance kicked in. But the vast majority of decisors have rejected this claim, and as such, one should not write a civil will without properly ensuring that halachic requirements are met. Most contemporary decisors rely on a model developed in medieval Ashkenazi communities, in which the father would include a stipulation in his daughter's dowry that included a large debt to her that would be created an hour before his death (shtar hatzi zachar). This debt would then be remitted by her brothers, the legal heirs, to create an equitable distribution of assets. Today, of course, most couples do not get married with formal dowries. However, on the basis of this model, decisors have drafted similar documents in which a testator stipulates a large debt to a non-legal heir (e.g., a married daughter, a cousin) that takes effect shortly before death. Still, the contract further stipulates that this debt is waived if the legal heirs agree to distribute the estate in accordance with the testator's last will. Several versions of this legal model are available, and one should consult with one's lawyer and rabbi to draft such a document appropriately. ■ The writer teaches at Yeshivat Hakotel, directs the Tikvah Israel Seminars, and is a junior research fellow at the Israel Democracy Institute. www.Facebook.com/RabbiShlomoBrody.
