Estate Planning, Halacha and the Jewish Law of Inheritance

The question of whether wills are recognized by Halacha involves some of the fundamental concepts of Halacha (Jewish law) under a secular legal system. Rabbinic responsa regarding specific conflicts between the Jewish Law of Inheritance and the law of the land date back at least 700 years to a famous responsum by the Rashba (Rabbi Shelomo ben Aderet), and likely much earlier than that. The Halachic discussions continue today. One notable work dealing with the challenges of preparing a modern estate plan which conforms to Halacha is The Jewish Law of Inheritance, the final work by Dayan Dr. Isidor Grunfeld of the London Beth Din (Jewish court).

Here’s a quick overview of the issue:

There are two distinct questions regarding the Halakhic status of wills and trusts. First, are wills and trusts recognized as valid instruments by Jewish law? Second, if they are, or if estate plans can be made to be Halakhically valid, should they be used to leave property to someone other than those entitled to inherit under the Jewish Law of Inheritance?

Many, if not most, leading Halachic authorities throughout history consider a will to be an invalid document where it contradicts the order of succession laid out by the Torah. This is because both the will and the Jewish Law of Inheritance become effective at the same instant — the moment the testator (the person making the will) dies. According to these opinions, the Jewish Law of Inheritance prevails and the will is ignored. In fact, according to many opinions, simply executing a will is prohibited as a diversion of assets from the rightful Halachic heirs (the Talmudic prohibition of ha’avarat nahala) in a manner enforceable in a secular court.

A common solution to the problem is for the testator to separately sign a note of indebtedness to the non-Halachic heirs in an amount in excess of the estate. The note states that the debt is satisfied if the halachic heirs accept the terms of the will, essentially forcing the Halachic heirs to choose between the will and the note, with the will obviously being the better alternative for the Halachic heirs. Halacha allows a debtor to create an enforceable debt without an underlying reason for the debt. The note probably has no validity in a U.S. court.

There are many other related Halakhic issues to deal with. Does dina demalkhuta dina (the law of the land is the law of the Torah), itself a complex question, apply to the Jewish Law of Inheritance? While one can distribute estate assets during life by giving gifts, according to many opinions such distributions may be limited to assets already owned by the person making gifts. Furthermore, regardless of whether the methods are Halachically sanctioned, at what point does providing for non-Halachic heirs rise to the level of diversion of assets?

I’d be happy to discuss this topic further, so long as it is understood that there are divergent opinions at every step of the way, and that one must consult a Halachic expert for a practical application of these laws.

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7 comments

  1. [...] scheme is halachically problematic, whether or not the will is accompanied by a binding halachic note of indebtedness. Advertisement GA_googleAddAttr("AdOpt", "1"); GA_googleAddAttr("Origin", "other"); [...]

  2. Shimmy Blumenthal · ·

    A person had a meeting with a lawyer about how some of his assets should be distributed at time of death, The lawyer took handwritten notes. The person died without having any other meetings with this lawyer. According to Halacha, If the lawyer types up these notes and signs them stating that they were told to him, do any of the distributions mentioned in the notes have validity or are they disregarded completely?

  3. My response is for discussion purposes only. You should obviously consult with a posek (which I am not). Email me privately (SE@Elnadavlaw.com) if you wish to be put in touch with a dayan I have consulted with in the past on issues of yerusha.

    In terms of Halacha, there are several issues. First, although there is an important minority opinion that a will is an effective transfer document, this is obviously not the case where a will was discussed but never executed.

    “Mitzvah lekayem divrei hamet” can sometimes play a role. There are different opinions as to when the doctrine applies, but in general, a decedent’s express directions are binding only if he or she transfers the subject property to a third party with such directions, or if the directions are given to the halachic yoresh. Neither seem applicable here. It appears from the question that no one but the lawyer knew the decedent’s intentions. If so, the decedent never gave specific instructions during his/her lifetime to a third party in possession or to his or her halachic heirs.

    Kibud av may play a role, but there are limitations, and the obligation, even where it applies, is usually not enforceable.

  4. Shimmy Blumenthal · ·

    When you write, “no one but the lawyer knew the decedent’s intentions”, when we read the notes that the lawyer typed up is that good enough to now know the decedent’s intentions?

    What does, “the directions are given to the halachic yoresh” mean? Does this mean verbally? What if there is more than one yoresh?

  5. It’s not simply a matter of knowing the decedent’s intentions. “Mitzvah lekayem divrei hamet” is generally understood to require that the decedent, during his lifetime, expressly instruct a yoresh or a third party in possession of the asset to transfer the property to someone else. If the only discussion was with the lawyer, this hasn’t been satisfied.

    I believe verbal instructions would be acceptable. I’m not sure if each yoresh needs to be instructed. For practical reasons, you’d never create an estate plan that relied on verbal instructions or on halachic principles that are not aligned with secular law.

  6. Shimmy Blumenthal · ·

    If the halachic yoresh says that the decedent verbally told them during his lifetime that his intention is to give them a house, for example, and the lawyer notes have the same intention, that would be enough for a dayan to give them the house?

  7. […] A more simple and clearer explanation of the problems can be found here.  […]

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