The Laws of Inheritance and Estates
A Firstborn Does Not Receive a Double Portion in Property That Is “Anticipated” (Ra’uy) as He Does in Property Already Held (Muchzak)
It is an established halachah [Bava Batra 125 and Choshen Mishpat 277] that a firstborn does not receive a double portion in a debt. Therefore, a firstborn inherits a double portion only in the part of the inheritance that exists in tangible form and is present in the home. Consequently, he does not inherit a double portion of money in a bank account, since money deposited in a bank is considered “anticipated” (ra’uy): the money is not actually kept in the bank as a deposit, but rather the bank uses it, and it is recorded as a loan.
Although one could discuss that since the money can be withdrawn from the bank at any time and it is a secure loan, it should be considered “held” (muchzak), nevertheless we do not find a distinction between different types of loans.
However, from another angle, there is room to discuss that in Eretz Yisrael, since all funds deposited in banks are under a heter iska, and the heter iska is structured as “half loan and half deposit,” then the half that is a loan is indeed a loan, and the firstborn would not take a double portion in it. But regarding the half that is a deposit, it should be discussed whether it is considered “held” (muchzak), in which case the firstborn would take a double portion in it [see Pitchei Teshuvah, siman 278, se’if katan 4].
A Husband’s Inheritance
The law is that a husband inherits his wife, but a wife does not inherit her husband.
A husband inherits his wife only in property that is “held” (muchzak), but he does not inherit her in property that is “anticipated” (ra’uy) [Bava Batra 125 and Shulchan Aruch, Even HaEzer, siman 90]. Therefore, if a woman has a separate bank account in her own name, he does not inherit it.
All this applies to money deposited into the wife’s account after her death. But money that was deposited into the wife’s account during her lifetime — the husband inherits it, because he acquires it under the law of nichsei melog [see Avnei Miluim, siman 90].
Does a Firstborn Inherit an Apartment Registered in His Mother’s Name?
A firstborn receives a double portion only in the inheritance of his father, not in the inheritance of his mother. Therefore, when parents leave an apartment as an inheritance, since nowadays it is common to register the apartment in the land registry (Tabu) in the names of both spouses, the firstborn will not inherit a double portion in the part of the apartment registered in the Tabu in his mother’s name.
Regarding the part registered in the Tabu in his father’s name: if, from the outset, when the apartment was purchased, the parents of the father and the mother participated in the purchase half and half, in such a case the firstborn inherits his father’s share.
In a case where the wife’s parents paid the entire cost of the apartment, there is room to discuss whether, since half of the apartment is registered in the Tabu in the father’s name, it is considered that they gave him as a gift the half registered in his name, and his firstborn son would receive a double portion in that part; or perhaps we should say that it is not a gift, and they registered the apartment also in his name merely for honor or for the purpose of a mortgage. This requires further analysis.
Although regarding divorce the common ruling is that when the wife’s parents paid for the entire apartment, it belongs entirely to the wife, nevertheless regarding inheritance, the half registered in the husband’s name is considered his, and his firstborn son will inherit a double portion in it.
The Law of One Born by Caesarean Section, and Whether This Must Be Suspected
One born by caesarean section does not receive a double portion, and therefore a first child born by caesarean section does not receive a double portion. Accordingly, one must discuss how any firstborn receives a double portion: why should we not be concerned that he was born by caesarean section? One can answer that if this was not heard, there is no need to be concerned about it; therefore, a beit din ordinarily does not need to investigate this matter as long as others have not raised such a claim against him.
But if the heirs do indeed claim that the firstborn was born by caesarean section, then the firstborn son will need to bring witnesses who testify that his father said he is the firstborn, and this will be effective by virtue of the law of “yakir,” the father’s recognition of his son as the firstborn.
Is Every Will Drawn Up by an Attorney Valid According to Halachah?
In order for a person to be able to transfer part of his assets also to his daughters, who do not inherit according to Torah law, as explained below, he must draft a will that is valid also according to Torah law, in which he grants them a share in the assets as a gift. The act of acquisition must take effect during his lifetime, because according to Torah law, the moment a person dies, his assets immediately pass into the ownership of the heirs, and at that point he can no longer transfer anything to the daughters. Therefore, he must transfer “the body of the property from today, and the fruits after death”. The more correct method is to draft the will so that the acquisition takes effect one hour before death.
And if he bequeaths to his children debts that others owe him, since an act of acquisition is not effective for such debts, and likewise for money deposited in the bank an act of acquisition is not effective either, for it is an oral loan; and with an oral loan, only the acquisition of “ma’amad sheloshtam” is effective, while with a loan documented in a deed, writing and delivery are required.
Additionally, there are funds that arrive only after the writing of the will, for which the acquisition is not effective.
Therefore, the will includes a formulation of financial obligation through admission, meaning that he admits that he owes his heirs a sum of money equal to the value of the assets he will have at the time of his death. In this way, it is possible according to Torah law to transfer his assets to his sons and daughters.
Inheritance by Daughters
According to the law of our holy Torah, a person who dies and leaves sons and daughters — only the sons inherit, and the daughters do not inherit. This law is derived from the verse written in the weekly portion [Pinchas 27:8]: "איש כי ימות ובן אין לו" — “If a man dies and has no son” — meaning that daughters do not inherit [when no will has been drafted according to Torah law, as stated above].
However, in contrast, in the laws of the nations, daughters also inherit. Therefore, if the sons wish to inherit alone according to Torah law, they must have the daughters sign a waiver of their share in the inheritance. It must be discussed whether the daughters are permitted to demand money for their signature, or whether, since this involves the law of returning lost property — because according to halachah the money belongs to the sons — they are obligated under the law of returning lost property to sign for the sons so that they receive their share. The later authorities disagree on this matter.
The primary halachic ruling is that there is an obligation to sign under the law of returning lost property, and also because of the principle of “the trait of Sodom”; see Choshen Mishpat, siman 12, se’if 6.
[Some require that, for the daughters’ signatures, the sons give them ten percent of the total inheritance; see Responsa Sho’el Umeishiv, Mahadura Tinyana, part 1, siman 1; Responsa Harei Besamim, part 2, siman 99; Responsa Beit Shlomo, Orach Chaim 85, Yoreh De’ah 79, Choshen Mishpat 109; Maharia HaLevi, part 2, siman 61; Responsa Pnei Moshe, siman 15; Responsa Divrei Chaim, Choshen Mishpat, part 2, siman 3; the book Chukot Chaim by Rabbi Chaim Palachi, siman 73].
A Wife’s Inheritance Regarding Money Deposited in Her Husband’s Bank Account
A man and woman have separate bank accounts, and the husband passed away. According to the law, only his wife can withdraw the funds deposited in his account. It must be discussed whether the wife inherits the money: although a wife does not inherit her husband, nevertheless here, since this is the bank’s regulation under state law — that only the wife can withdraw the money — perhaps anyone who deposits does so with the understanding that his wife will inherit. Or perhaps we should say that ordinarily a person who deposits money does not think about this, and according to this side, the sons inherit the money.
In practice, it appears that the wife does not inherit, because even according to the bank’s regulations, the wife cannot take the money for herself but only withdraw it, since the purpose of the bank’s regulation is to prevent claims against the bank if it transfers the money to someone not entitled to receive it. Therefore, it was established that only the wife can withdraw the money, but this does not determine the wife’s ownership of the funds; that is determined according to the ordinary laws of inheritance and wills [see also Chiddushei Rabbi Shlomo Heiman, Ketavim, siman 8].
Is There a Prohibition of Transferring an Inheritance in a Will That Gives to Daughters?
It is stated in the Gemara, Bava Batra 133b, that Shmuel instructed his student Rabbi Yehudah not to participate in transferring an inheritance, even from a bad son to a good son, and all the more so from a son to a daughter. It is clear that one should not alter the inheritance from the way it is meant to be according to Torah law.
If so, one must ask: how is it customary to make a will in which the daughters receive a portion, or even an equal portion with the sons, of the inheritance?
However, we have already found among the poskim [Choshen Mishpat 281; Even HaEzer, siman 90, siman 108, and siman 113; Responsa Shav Yaakov, Choshen Mishpat, siman 20; Responsa Maharam Padua, responsum 45] that the custom was to write a deed of “half a male share.” The meaning of a deed of half a male share is that the father of the bride would give his daughter, the bride, a right in the inheritance equal to half of what a male receives; and it is clear that they were not concerned about the prohibition of transferring an inheritance.
Some even have the custom to make a deed of a full male share, so that the bride receives a portion equal to that of a male; see Ketzot HaChoshen, siman 33, se’if katan 3; Responsa Chatam Sofer, Choshen Mishpat, siman 91. One must ask how they had such a practice and why there is no prohibition of transferring an inheritance.
Now, although the aforementioned deeds of half a male share and a male share were made regarding movable property and not land, nevertheless Kesef HaKodashim [Choshen Mishpat 282] wrote that we have not heard even of the pious of the world refraining from writing a deed of half a male share even regarding land.
It emerges from all the above that they were not concerned about the prohibition of transferring an inheritance.
Several approaches were stated to explain the custom permitting the transfer of inheritance: first reason, the prohibition applies only if he transfers it entirely, but if he transfers only part of the inheritance, there is no prohibition; second reason, with a gift during one’s lifetime there is no prohibition; third reason, with a transfer by way of a litigant’s admission, there is no prohibition. These reasons apply to wills that also give to daughters.
