The Obligation of Inheritance and the Ease of Avoiding It

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by R. Gidon Rothstein

Counting a rule as part of an existing mitzvah or a mitzvah of its own does have some halachic ramifications, although it takes some work to find them. Those details always seem less compelling than the underlying question of whether a part of a mitzvah might be significant enough to count on its own.

For our current example, Rambam’s Sefer Ha-Mitzvot Obligation 248 requires Jews to follow the rules of inheritance, based on Bamidbar 27; 8, where the Torah lays out the procedure should a man pass away without sons. Rambam includes the idea of the first-born son’s double portion in this mitzvah (double each of the brothers, not all of them; a bechor, first-born son, with four brothers will receive one-third of the estate, each of the others one-sixth). Ramban puts the bechor in his own mitzvah, as we will see later.

Sefer Ha-Hinuch Mitzvah 400 understood Rambam to place the responsibility for this mitzvah primarily on the beit din, the court that oversees disposition of the assets.

Rules Reveal Relationships

Sefer Ha-Hinuch suggests our mitzvah started with the case of a man with no sons, because the baseline inheritance of sons was too obvious to record. Less obvious, a mamzer, a son born of an illicit relationship, inherits equally with his half-brothers [the haftarah for Hukkat shows Jews did not always honor this rule, because Yiftah was disinherited, and he was the product of a side relationship, not a mamzer- producing one.

[I include the mamzer comment because common lore treats the mamzer as unmitigatedly awful, where this rule offers one good example of the many ways a mamzer is an ordinary Jew. The mamzer does bear the weight of his/her status in other areas, such as the prohibition on marrying an ordinary Jew and how his/her status will transfer to any children the mamzer bears. Here, the mamzer is not to be treated any differently than his brothers. Or her sisters.]

If there are no sons, the inheritance goes to daughters; no daughters, the property goes to the man’s father, brothers, grandfather, uncles, and on. The last verse of the section, 27;11, calls these ideas a hukkat mishpat, a statute and ordinance, giving it legal teeth.

Sefer Ha-Hinuch stresses the father need not ensure there is an inheritance. Until death, a man’s property is his, to do with largely as he pleases. (He throws in the phrase “as the scholars of the other nations think,” I think because the Torah’s idea about inheritance diverges sharply from their view of property. While a person is alive, the Torah’s view stays closer to theirs.)

He can give it all away, use it up, or whatever.

Property Transfers Automatically After Death, Sticks to the Heir

The mitzvah comes to tell us only that when the person leaves this world, any property he has not yet disposed of immediately becomes theirs, an idea the Gemara refers to as mishmush nahalotSefer Ha-Hinuch thinks the phrase means the heirs are linked to the property, it automatically devolves to them. He relates it to God’s plan for nature generally, when something leaves the world, more and others to take its place [property has a sort of ecosystem, the death of one member filled in by others]. This explains why Baba Batra 126b denies any impact to a man saying, “my son should not inherit me”–inheritance just happens, and no one can prevent it.

Perhaps because it highlights the idea, Sefer Ha-Hinuch goes on at some length about the Gemara’s discussion of a man who gives property to one person with the explicit instruction that it go to a specific other person after the first one passes away. Courts will accept and enforce the condition if the first person is not an heir; such a person has been given rights of use during  his/her lifetime, and after death, it goes to the second person.

Unless the first person is a Torah-defined heir. Once the property reaches an heir, the rights of the original bequeather cease. Even if the original person directed it to go to the Beit Ha-Mikdash (usually a very strong legal claimant) after the death of recipient one, here it does not.

I hope we are starting to see yerushah, inheritance, as about the natural devolution of property after death. While alive, people have extensive property rights; after death, inheritance just happens, and there are limits on how a person can affect that.

Workarounds Are Not Denials

Aruch HaShulhan Hoshen Mishpat 276;11 picked up on Rema’s idea inheritance only applies to physical items, not rights or benefits. Amusingly to me, he names air rights (very important in today’s world) as an example of not being property.

R. Yohanan b. Baroka thinks the Torah allowed a man to adjust inheritances within a group of heirs—the father could say this son among my sons, or daughter among my daughters, should get more or less. He inferred the idea from the Torah’s reference to a man beingmanhilhis sons, Devarim 21;16, implying some active role in giving out the inheritance, not in defining who counts as an heir. We accept this view for heirs other than a first-born, to whom we will turn below.

There are many other ways to avoid the inheritance going exactly as the Torah set it up, and I have seen responsa that ratify the current feeling daughters and sons should receive equal shares. [I also know families where the father left the original Torah version of inheritance intact, and saw how much resentment it caused.] The Torah’s indifference to a father finding a way around its rules begs for explanation, but let’s gather more facts before we venture one.

Some Roles of Women in Laws of Inheritance

Inheritance arose as a topic in Pinhas because the daughters of Tzlofhad asked to inherit their father. God agreed, said whenever there are no sons, the inheritance goes to the daughters. Sefer Ha-Hinuch points out a detail, “sons” or “daughters” include any descendants those children may have left behind. A great-granddaughter through a son will inherit before a man’s daughter, and a great granddaughter through her mother will inherit before a man’s father.

Mothers do not inherit, an idea Sefer Ha-Hinuch calls a tradition, and maternal brothers do not inherit each other, because, the Gemara says, family through the mother is not considered family. Maternal relatives do count as relatives in other areas of halachah, so we have to figure out why they do not count here.

Aruch Ha-Shulhan Hoshen Mishpat 276;5 attributes it to the idea people define themselves by their father’s lineage, like when the Torah arranges the Jews in the desert according to the father’s line. To me, he seems to mean the Torah reflected the world the way it is rather than decided that was the proper way for it to be [which, in theory, leaves room for a future Sanhedrin to see the matter differently]. We will need to consider this again below.

On the other hand, Aruch HaShulhan also makes clear children inherit their mother in the same way as their father, first sons, then daughters, and so on.

There’s much more we could say, but we have to move on to the other part of this mitzvah, which might be a mitzvah of its own.

The First Born

Sefer Ha-Hinuch records the Gemara’s certainty the bechor receives a double portion only from property in the father’s possession at the time of death, not inheritances due or other accounts receivable, monies owed to the father, nor even increases in value that occurred after the father’s passing. The Torah says (Devarim 21;17) the double portion is out of khol asher yimatzei lo, all that he has, not what is coming.

Fathers have the legal right to identify their bechor, even if it contradicts what we thought we knew. A man can live his whole life where one son seems to be the first-born, an older man shows up later, the father says oh, yes, that’s my first-born, and the whole inheritance landscape shifts.

Gets a Mitzvah All His Own

Everybody accepts these first-born rules, but Ramban considers them a mitzvah of their own, the twelfth of the prohibitions Rambam omitted. He cites Devarim 21;16, where the Torah says the father may not/cannot treat a later son as the first-born (in the verse, because the father prefers that mother).  Baba Batra 130b argues the Torah had to rule this out because it had spoken of yom hanhilo et banav, the day the father gives his inheritance to his sons, opening the door to it being a matter of a father’s choice; the first-born aspect of it is not.

Ramban thinks the bechor receives the double portion even if his father disregards this rule and tries to disinherit or dilute the first-born’s share. The father will have sinned ineffectively, because a Jew cannot bring about a situation the Torah ruled out. Sefer Ha-Hinuch included the courts, who also transgress if they implement the father’s illegitimate instructions.

Ramban here and in his summary of how his count of mitzvot varies from Rambam’s also accepts Behag’s view there is a separate aseh, obligation, to recognize the first-born son, giving inheritance three mitzvot in his count. In line with that, he says if a father denies his first-born son, as a way to stop him from receiving the double portion, the father has also violated the Torah. The obligation/prohibition here is to acknowledge and act towards the first-born as first-born.

[Ramban’s focus on recognizing the first-born seems to me to connect to his idea that kibbud av, honoring one’s parent, starts with acknowledging the parent. Here, too, Ramban is focused on clarity about bloodlines, I think, which fits nicely with the idea we saw earlier, a father has the ability to identify someone as his bechor.]

The World Rolls On

Does all this teach something about where the Torah was directing us? Sefer Ha-Hinuch has one useful idea, the Torah wanted people to remember our property is all God’s bounty. Since death was decreed in the time of Adam, none of us will be able to use our possessions forever, but God wanted the bounty to continue, and therefore arranged for it to transfer automatically upon death.

We could have had automatic transfer without family, because it is only about continuity, as in Nature. Sefer Ha-Hinuch suggests it stays in the family because they are the closest to whatever divine calculations brought this particular set of goods into this man or woman’s world. God does not want death to overthrow the world order, so property moves to the nearest relative.

A Lesson in Limits of Ownership

The idea seems to me true but insufficient. If we care about continuity, why prohibit giving it to daughters over sons (or, if you suspect sexism, brothers over sons)? Just based on the facts we have seen, I suggest the Torah wanted people to recognize their limited time in this world, and the finality of death in terms of their right to impact on this world. What we own is ours, but only until the moment of death. As soon as a person passes, that person’s ownership presence in the world is gone, has automatically passed to someone else.

We can wonder at the Torah’s choices of sons over daughters, a bechor double his brothers. I have ideas for answers [such as: inheritance was usually from a man, and sons are more obvious continuers of a man’ with a bechor the son who was in the world with him longest], but those answers reside in halachot other than the ones we have studied here, so it will have to join the long list of important issues we must leave for another time.

About Gidon Rothstein

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