Marrying and Bequeathing to Lapsed Jews

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by R. Gidon Rothstein

9 Iyyar: R. Tzvi Pesach Frank and R. Moshe Feinstein on Marrying and Bequeathing to Lapsed Jews

One of the limitations of my project of finding responsa written on each day of the calendar is that I to some extent force them to fit a Procrustean sarcophagus (sorry, that’s a phrase my teacher R. Aharon Lichtenstein’s zt”l used in a famous letter, and I have always wanted/ needed to insert it at least once in casual conversation) that they fill a half-hour audio shiur (on ou.org) and/or take me 1000-2000 words to summarize.

That means there are many wonderful responsa—and, worse, important meshivim, respondents — whom we never or rarely see. One of those is R. Tzvi Pesach Frank, who has the additional handicap that many of the responsa of his that I have found along the way deal with technical issues of how to properly write a get. While that’s vital for those involved, it’s not an area I know how to make interesting to readers/listeners.

A Marriage to a Converted Jew Who’s Now Disappeared

For this installment, I chose to rebel and include a responsum of his that won’t take our full space; I’ll round it out with a short responsum of R. Moshe Feinstein’s on a related topic. Shu”t Har Tzvi Even HaEzer 99, dated 23 Elul 5714 (we’ll get to 9 Iyyar below), deals with a question he received from a rabbi in Buenos Aires.

A man had married off his daughter with a Reform rabbi officiating. Some time after the wedding, news arrived that two years earlier, the groom had converted to Christianity. When the wife heard, they fought, he left, and no one knows where he went (so she’s apparently stuck, married to him with no way out).

The father is begging this rabbi for help, and is worried that if she’s told she cannot get married again she’ll leave the religion completely. He suggested that since a Reform rabbi had performed the ceremony, the witnesses were certainly public Sabbath violators (which we generally assume means they cannot serve as witnesses, without which there is no marriage).

I think it’s the rabbi who adds—and sees this as the essential reason to nullify this marriage– that if she had known of his conversion she would not have married him for all the money in the world. That should mean that it was a kiddushei ta’ut, a marriage entered under false pretenses.

What Women Want

R. Tzvi Pesach Frank is not so sure that false pretenses are enough to free her. He notes that Baba Kamma 110b wonders why a woman whose levir (yabam, the brother-in-law she marries if her husband passes away without children) was a mukeh shechin (afflicted with bodily blemishes so odious that almost no one would agree to marry such a person) still needed a chalitzah. Shouldn’t she be able to claim she never intended to agree to such a yibum?

The Gemara’s answer, that a woman is so interested in marriage she might agree to the possibility of needing a chalitzah or yibum from such a brother in law, sounds bad for the woman in our case, since it implies that women will put up with a great deal for the sake of marriage.

However, Mordechai to Yevamot already noted a Geonic tradition that said that a mumar, someone who abandoned the religion, was different.  The Geonim held that if the yabam, the levir was a mumar, she wouldn’t even need a chalitzah (that’s a vital leniency, since in many such situations the apostate levir is unwilling to perform the chalitzah).

The Difference an Apostate Makes

Maharam pointed to Baba Kamma as support for this, since it makes clear that the standard is what women will accept. He then says that anan sahadei, it is eminently obvious to all, that she never intended to agree to live with a mumar. (That suggests that any standard that is clear at a particular time would be enough; today, e.g., one might argue that if the brother-in-law was a known wrongdoer in other ways no woman would willingly accept—pedophilia comes to mind, as does physical abuse– that the widow wouldn’t need a chalitzah).

Our situation is even better, since the problem is with the man himself. Theoretically, once could argue that a woman would accept the risk  of needing a chalitzhah from a mumar for the sake of marriage, but there’s no reason to think she’d agree to an actual marriage with a mumar.

One more helpful factor is Mahari Mintz’s point that there is a debate about whether a mumar’s kiddushin counts at a Biblical or Rabbinic level (if the latter, it leaves room for more leniencies). Given all that, there’s room to say she was never married, if there’s no way to find the husband.

The Ninth of Iyyar Addition

Whoever assembled these responsa included here the note that “more on this issue was found in the writings of” R. Tzvi Pesach Frank, dated 9 Iyyar 5717 (1957) (when he was about eighty-four!). He mentions that he saw Shu”t Chessed Avraham had also made the point that the Geonic idea about a yabam who’s a mumar was truer of a husband, with whom she clearly and obviously would not want to live.

Tosafot Ketubbot 47b might seem to be a problem for this view, since they held that we cannot proceed based on anan sahadei assumptions about one person’s perspective (in this case, the woman’s, that she definitely doesn’t want to be married to a man like this), if someone else’s perspective also matters. Since kiddushin depends on the husband’s views as well, Tosafot would seem to rule out relying on an umdena, an assumption, about what she would or would not want.

R. Tzvi Pesach Frank solves that problem by saying that since the husband’s a mumar, he doesn’t care whether there was kiddushin, so we aren’t running afoul of Tosafot’s concern (there’s what to be said here, since the man clearly wanted to be married, even if the exact issue of kiddushin doesn’t matter to him; I could imagine someone arguing that Tosafot would say that we’re constructing a vision of what she would have wanted that goes against what he’d wanted, in general if not in specific).

He closes by raising (and leaving for further analysis) the question of whether we would nullify a marriage even retroactively, where the husband became a mumar after the marriage. (This, too, has broad ramifications, opening the door to saying that a spouse’s later conduct can be so intolerable that it would allow for retroactive nullification. But he does not pursue it).

R. Moshe Feinstein on Where Heirs Have Abandoned Observance

While I am just over a thousand words, so that’s sort of enough, I used a few hundred to introduce the piece, so let’s also see a short responsum of R. Moshe Feinstein’s for the ninth of Iyyar 5739 (1979). Iggerot Moshe Choshen Mishpat 2;49 discussed how to write a will for a man who had no children.

R. Feinstein agrees that it’s better to bequeath the estate to Torah scholars who spend their lives in study, and that if he raised such scholars, they have a stronger claim to his donations than others. (It sounds like the man had raised or educated some non-relatives).

That factor should be subordinate to need, however. He should first consider family size and other sources of livelihood, whether those sources are fixed or temporary, and then divide his estate in a way that maximizes the benefit to those in need.

Torah Institutions and Distant Relatives

The man wants some of the estate to go to institutions of Torah study as well. Commending his choice, R. Feinstein suggests giving a third to institutions and two-thirds to the scholars in need.

That’s all if there are no known heirs, like siblings or nephews and nieces. But if he has such relatives, the tradition is not to deny them an inheritance completely (it’s considered i’aburei achsanta, a transferring of inheritance from those to whom the Torah apportioned it).

What he can do is bequeath a davar chashuv, a meaningful portion, to those heirs (he thinks a fifth of the estate makes sense), and of the rest, a third to Torah institutions and two-thirds to the Torah scholars he knows.

For the ninth of Iyyar, two brief responsa touching on how others’ observance affects our attitudes towards them, R. Tzvi Pesach Frank on whether a groom’s failure to disclose that he once converted to Christianity automatically nullifies a marriage and R. Moshe Feinstein on our preference for bequeathing an unencumbered estate to those who will further Torah in the world.

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