Masei 5771 70 This week's article deals with the transfer of inheritance from sons to daughters. Although by Torah law, a daughter does not inherit in the presence of a son, it is a fairly widespread custom for parents to transfer a share of the inheritance to daughters. What is the source for this custom, and what are its halachic parameters? How, indeed, is this transfer effected? These questions, and more, are discussed in this week's article. This week's Q & A discusses the question of exercising with music during the Three Weeks. Passing Inheritance to Daughters Inheritance of Daughters The very last chapter of the book of Bamidbar returns to the issue of the daughters of Tzelophchad. After Tzelophchad passed away without leaving any sons, Hashem instructed that his daughters inherit their father's estate: "If a person dies, and has no son, his estate shall be transferred to his daughter" (Bamidbar 27:8). Subsequent to the initial instruction, the chapter in our parashah addresses the problem that would arise if a girl, who inherited a field from her father, marries somebody from a tribe other than her father's. The ancestral field would now become part of the land of another tribe, for her land would transfer to her husband. Due to this concern, Tzelophchad's daughters were instructed to marry a man of their own tribe, so that the tribe would not lose a slice of its land. The book of Bamidbar concludes by stating that the daughters followed this instruction, and wed husbands from their own tribe of Menasheh. Based on the above verse (which is in Parashas Pinchas), the Mishnah (Bava Basra 115a) writes that with regard to inheritance, a son takes precedence over a daughter. Only when a person has no sons, do the daughters inherit. If a person has a son, daughters do not inherit, and the son receives the entire estate. This most basic tenet of Torah inheritance law is ruled by the Shulchan Aruch (Choshen Mishpat 276:1): "When someone dies, his son inherits him. If he has no son his daughter inherits him." Dear Reader! This week's parashah, which brings the Children of Israel to the brink of entry into the Land, opens with a list of the forty-two journeys that the Children of Israel journeys in the wilderness. According to certain authorities, as cited by the Magen Avraham (428:8, in the name of Tzeror Mamor), it is forbidden to stop the Torah reading in the middle of the list of journeys. The reason for this is that the number of journeys mentioned by the Torah reaches forty-two, which alludes at a holy Name of Hashem (the Name of Forty- Two Letters). It is therefore forbidden to interrupt, as it were, in the middle of the Name. Many congregations do not follow this custom, but some are thus particular to read all forty-two journeys without interruption. What is the great significance of the journeys, that they should form a holy Name of
Hashem? The underlying calling of the Children of Israel was to reach and enter the Land of Israel. Several verses indicate that it is here, in the Land of Israel, that Hashem intended the mitzvos of the Torah to be performed: "These are the commands, decrees and laws that Hashem your G-d directed me to teach you, to observe in the land that you are crossing the Jordan to possess" (Devarim 6:1). The Ramban (Vayikra 18:25) goes so far as to state that although remaining mandatory, the performance of mitzvos outside the Land is considered 'training' for their performance in the Land! In order to enter the Land of Israel, the Jewish People had to endure the forty-two journeys listed in our parashah. The purpose of the journeys, beyond punishing the people for the sin of the Spies, is not given by the Torah. We do not know why the nation camped in the specific places they visited; nor do we know why some encampments were for a long period of time, and others were short. However, the emergence of the holy Name of Hashem from the total of the journeys teaches us that the journeys played a fundamental role in bringing the people to the Land. Only after the journeys were Yet, although a daughter does not inherit (by Torah law) in the presence of a son, a person has the power to transfer his belongings to his daughter, so that she receives them after his death. In the present article we will discuss the parameters of transferring inheritance from one's sons, and in particular from sons to daughters. When and why is this widespread practice permitted, and how can it be done? The Problem of Transferring Inheritance The Mishnah (Bava Basra 133b) states that the 'spirit of the Sages is not at ease' (i.e. it is against the spirit of the law) with those who bequeath their possessions to anyone other than their Torah inheritors. This statement of the Mishnah leads Shmuel, whose words are cited by the Gemara, to proclaim that one should not even be a party (for instance by countersigning) to the transfer of inheritance from sons to others. This is ruled by the Shulchan Aruch (Choshen Mishpat 282). The Torah wishes specific rules of inheritance to be followed, and transferring the inheritance to others, while legally effective, contravenes this basic principle. In view of this strongly-worded statement, on which grounds is it permitted (and, as we will see, sometimes even recommended) to write a will, or halachic tzavo'oh, which defines an order of inheritance different from the Torah's order? The Half-Male Document Before dwelling on the halachic rationale for writing a will (known as a tzava'ah in Hebrew), we should first establish whether it is actually permitted. The fact that it is sometimes permitted to transfer inheritance is clear from numerous sources, which show further that the practice has been common for many centuries. One of the first sources that one can be flexible with the Torah's laws of inheritance is the ancient custom of writing a shtar chatzi zachar, which translates literally as a half-male document. Although this concept has faded from common practice, the document was in widespread use for a number of centuries, from as long as six or seven hundred years ago. The idea is mentioned by the Maharil (of the late fourteenth century, no. 88), the Maharik (fifteenth century, no. 13), and Mahari Weil (fifteenth century, no. 16 and 27). The half-male document, which was traditionally employed as a type of dowry, bestows the status of "half a son" on a parent's betrothed daughters. Although according to Torah law daughters in the presence of a son receive no inheritance, the document guarantees the particular daughter half of one of the brothers' share in the inheritance. If each brother receives $1000, a daughter possessing a shtar chatzi zachar will 2 Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org
receive $500. The halachic mechanism by which the daughter is promised half a son's inheritance is somewhat involved, and we will not discuss it here. But why was the custom initiated? In halachic literature we find a number of reasons for which a daughter should be given part of an inheritance, in spite of the ostensible disagreement with Torah principles of inheritance. One given reason is simply as a dowry for the daughter's marriage (Maharam Mintz 47); another is to cause special fondness between the daughter and her future husband (Nachalas Shivah 21:7). A third reason that is raised is that the inheritance is given in exchange for the tosefes kesubah, an extra sum of money that the chasan promises his bride. Making a Partial Transfer The common use of the shtar chatzi zachar demonstrates that it is permitted, at least under some circumstances, to transfer inheritance from Torah inheritors (sons). The question, however, is why surely, the prohibition (or ill-advisedness) of transferring inheritance from sons to daughters was intended by the Mishnah even when there is good reason to do so? The ends may be justified, but how are we able to permit the means? Several approaches have been suggested to explain why there is no prohibition in transferring property to daughters, and even to other non-inheriting parties. Two explanations are particularly prominent. A frequently quoted explanation is that the transfer of inheritance from sons to daughters is only partial, leaving part of the estate to which the Torah law of inheritance applies in full. Because the laws of Torah inheritance will not be entirely circumvented, it follows that no prohibition is transgressed. Bequeathing part of the estate to daughters limits the application of Torah law to only part of one's possessions, but does not uproot it totally. This approach has been suggested by the Tashbatz (147), the Maharshal (no. 49), the Tzemach Tzedek (no. 95), the Nachalas Shivoh (21:10), and many others. It is noteworthy that the Rav Moshe Feinstein (Iggros Moshe, Choshen Mishpat Vol. 2, no. 49-50) recommended leaving a significant amount (in one place he mentions one fifth of the estate, whereas in another he notes the sum of $1,000) for the Torah laws of inheritance to apply. Although some authorities contend that leaving a portion for Torah inheritance does not permit the transfer of the rest of the inheritance (see Chasam Sofer 151), Rav Moshe rules that one may be lenient. Giving a Lifetime Gift complete was the nation prepared for entering the Land. Only after forty-two journeys, and the completion of the holy Name within them, were the people ready for the Shechinah to rest upon them in the Land of Israel. As the month of Av approaches, when we were exiled from our land and the Temple was destroyed, the journeys of the wilderness provide our consolation. Just like the journeys of the Children of Israel, we cannot know the purpose of the many stops along the route of our national exile. We cannot understand the reasons for the tragedies that have befallen us, for the expulsions, the persecutions and the killings that we have experienced. Yet, just as the journeys of the wilderness, we know that our own exile, at the hands of countless foes and persecutors, is not in vain. Like the fortytwo journeys of the wilderness, even our own exile serves to complete the holy Name of Hashem, preparing us for the glorious return to our homeland. Our hope and prayer is that the return should speedily be completed, in the building of the Temple, and the coming of the Mashiach, speedily and in our days. Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org 3
Another reason for leniency, mentioned by the poskim, is that the property is not transferred to daughters as an inheritance, which would mean an alternative inheritance to Torah law. Rather, the transfer is made as a matnas chayim, a monetary gift during the parent's lifetime. According to some authorities, the prohibition of transferring property from Torah inheritors only applies when the estate is transferred as an "alternative inheritance." If a person transfers his property by means of a matnas shechiv meira (a gift given by a person on his deathbed), or arranges that that the transfer of ownership takes places after death, the implication is that somebody else will actually 'inherit' in place of the sons. If, however, the estate is given away as an ordinary gift during a person's lifetime, no prohibition applies (this approach is suggested by the Chasam Sofer, Choshen Mishpat 151, in defense of the common practice). Technically, it would actually seem that there is little difference between giving a gift to daughters (even if the effect is to circumvent Torah inheritance), and giving ordinary gifts: Just as there is no halachic issue in giving wedding gifts to one's friend, so there is no prohibition involved in giving property to one's daughters. Yet, some reject this rationale on account of the intention behind the gift. Because the underlying idea is to get around Torah law, some reject the reasoning as being insufficient to permit the gifts (some make a distinction between different types of gifts; see Machaneh Yehudah, Choshen Mishpat 282). Other Factors for Leniency We have thus learned two important rules concerning the writing of a proper halachic will (tzava'ah). First, a person should not give away his entire estate, but should leave part of it for the application of Torah law. Second, the part given away is transferred as a matnas chayim, a lifetime gift, and not as an inheritance. Yet, in view of the concern that remains over transferring inheritance, poskim mention a number of special motives, as listed below, for which there is greater justification for allocating one's property. 1. Charity. Some poskim write that the prohibition 4 of transferring inheritance does not apply to giving tzedakah. In fact, some authorities go so far as to write that making contributions to charity from one s estate is a worthy and commendable deed, notwithstanding the loss to Torah inheritors (see Chasam Sofer, loc. cit.; Iggros Moshe, Choshen Mishpat Vol. 2, no. 50). Because many desire to gain extra merit at the time of their departure from the world, it is commonplace to find wills that allocate a certain sum, or part of the estate, to charity. It is therefore particularly common to bequeath money to a daughter when her family is needy, or if the son-in-law is in full-time learning and requires financial support. 2. Recompense. A second motive mentioned by poskim for allocating possessions in a tzavo oh is recompense. There is particular leniency in bequeathing possessions (in a manner other than Torah inheritance rules) to somebody to whom one feels indebted. This is especially valid when combined with the halachic factors mentioned above: The gift is given as a lifetime gift, and it does not include the entire estate (see Beis Dovid 137; Tzemach Tzedek CM 62; Harei Besamim 129). This factor is often relevant in bequeathing particular possessions to specific individuals. 3. A wife s inheritance. A further justification, mentioned by poskim for writing a tzava'ah is in order to give a wife a greater portion than she would receive according to Torah law. According to Torah inheritance law, a wife does not inherit her husband s possessions. Instead, the children who inherit their father are obligated to pay her needs. Some prefer to give their wives financial autonomy by leaving them part of their estate. Interestingly, we find a number of precedents among gedolei Yisroel, most notably the Sedei Chemed, who espoused this method of transferring inheritance to wives. When this mechanism is employed, a clause is inserted which states that after the wife passes away, the estate is inherited by the children, just as it would have been had it not first passed on to the wife. 4. Avoiding disputes. Although it is scarcely mentioned by poskim, one of the primary motives today for writing a will is the desire to avoid family rifts. The cultural norms of modern Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org
times have created an environment whereby a daughter who receives no inheritance might feel embittered, possibly leading to the misfortune of in-family feuding. Moreover, in the absence of a clear tzava'ah instructing how a person s property should be divided, even the closest families are susceptible to discomfort at least, and sharp disputes at worst. Chazal teach us that "Shalom is great" (Yevamos 65b). Shalom is sufficient cause for the Name of Hashem to be erased in the scroll of the sotah, so it is surely a worthwhile goal, and a good reason for writing a tzava'ah that will ensure family harmony.. Bequeathing the Estate to 'Children' Because of the issues mentioned above, and various others motives that change from person to person, only a small minority of people today leave their entire estate for the application of Torah laws of inheritance. In general, writing a tzava'ah has become commonplace, and as we have seen, it has a fairly long tradition among halachic authorities (at least in connection with daughters' inheritance). Yet, actually writing a Torah will is a complex matter. As an example related to the inheritance of daughters, consider somebody who writes in his will, "These assets should be divided evenly among my children." Although the writer probably means to include daughters as well as sons, the halachic interpretation of the will is by no means simple. The Shulchan Aruch (Choshen Mishpat 247:3) discusses the term banai, which can mean either 'sons' or 'children,' and rules that when an instruction is issued to give assets to banai, only sons should be given the inheritance. The reasoning behind this is that unless the wording is clear-cut, we do not uproot Torah inheritance. Because Torah inheritance bequeaths assets to sons and not to daughters, we assume that the instruction to bequeath assets to sons/children (banai) refers to sons alone. Indeed, the Gemara (Bava Basra 143b), as quoted by the Shulchan Aruch, explains that this ruling applies even when the deceased had only one son. Although the plural form of banai strongly suggests the inclusion of his daughters in the allocation of assets, the Gemara writes that we find in the Torah that the word banai can be used even in relation to a single son, and this is sufficient to decide in favor of the son (though this interpretation is limited to a shechiv mera). Unlike the Hebrew banai, which means 'my sons' yet can also mean 'my children,' the word 'children' (or the Yiddish kinder) seems to be a clear reference to girls as well as boys, indicating an equal allocation among all. Yet, whereas in the presence of a single son and daughter the word 'children' certainly implies both, in the presence of several sons Shut Panim Me'iros (Vol. 1, no 38) rules that the instruction is interpreted as referring to sons alone. We would therefore reach the uncomfortable (in many modern contexts) position of daughters being excluded from the instruction to bequeath assets to children. Avoiding Pitfalls In view of other poskim who may dispute the position (see Pischei Choshen, Yerushah, chap. 4, n. 80), it is difficult to know what batei din would rule if confronted with such a case. The lesson we wish to extract, however, is that writing a will is not a simple matter. One point of vital importance is clarity: In writing a will, a person should spell out his intention in the clearest possible way, under the assumption that even the slightest ambiguity could lead to unwanted results. Beyond this, however, it is important to consult with an expert. We have mentioned only one of numerous halachic pitfalls that can be encountered in writing a tzava'ah. Another example is the common case of somebody bequeathing all of his belongings to his wife. In fact, according to Torah law somebody who leaves all his property to his wife is assumed to have left his estate to Torah inheritors, and intends to appoint his wife as the executor! The most basic pitfall, however, is the actual mechanism of transferring property to others. In order to ensure that a person's tzava'ah will be carried out, it is essential that the tzava'ah includes a halachically valid transfer of his property to the individuals in question. To write that somebody Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org 5
other than Torah inheritors should "inherit" him after his death is not effective, because the statement runs against Torah law, which dictates that sons (or the next closest relatives) inherit. Yet, although a kinyan (a valid method of transfer) is necessary, it is generally inadvisable to make a full transfer of one's property at the time of writing the tzava'ah. Most people who write tzava'os hope to live for many years to come, and would not want to give away all (or even part) of their worldly possessions. Furthermore, a transfer made at the time of signing the tzava'ah would not include items that enter the deceased's possession after the time of signing. Therefore, when writing a legally valid tzava'ah with one's lawyer, it is critical to consult with an expert in the field of Choshen Mishpat, in order to avoid the numerous halachic pitfalls that can arise. Those wishing to write a halachic tzava'ah, or to consult an expert concerning the validity of a tzava'ah, are welcome to contact us online at www.dinonline.org. c Halachic Responsa d to Questions that have been asked on our website dinonline.org.il Question: Can one listen to music during 3 weeks while exercising? Answer: It is permitted to listen to music for the purpose of exercise. One should not choose music that one particularly enjoys, and the music should preferably be little more than the beat itself. Sources: We find a number of leniencies concerning playing music when this is done for purposes other than enjoyment. For instance, it is permitted for somebody whose livelihood depends on playing musical instruments to play music (to practice, or for non-jews). As Rav Moshe Feinstein writes (Iggros Moshe, Orach Chaim Vol. 3, no. 87), it is permitted to study music, or to teach music, when one does so for reasons related to one's livelihood, and not for pleasure (see also Seder Pesach Kehilchaso, Chap. 12, no. 16; Tzitz Eliezer Vol. 16, no. 19). It is likewise permitted to play music for the purpose of calming a young child (who has not reached the age of chinuch), or for calming and soothing the sick (Shut Devar Shalom, Vol. 4, no. 80; Nitei Gavriel, Pesach Vol. 3, Chap. 53, no. 5, 7). It is also permitted to listen to music while driving, if the purpose of the music is to keep the driver alert to his environment (one should preferably play slow (classical or other) music, and not dance music). Some of the sources above refer to the sefirah period, but the same rulings apply to the three weeks. Therefore, when the music is not being played for enjoyment, but only for "keeping the beat," no prohibition applies. However, one should ensure that the intention is not to enjoy the music, but to keep the beat, and one should not select one's favorite pieces for the occasion, but minimize the music as much as possible. 6 Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org