https://pix4free.org/photo/4608/last-will-and-testament.html
לָאֵ֗לֶּה תֵּֽחָלֵ֥ק הָאָ֛רֶץ בְּנַֽחֲלָ֖ה בְּמִסְפַּ֥ר שֵׁמֽוֹת
“Unto these the land shall be divided for an inheritance according to the number of names” (Bamidbar 26:53).
This question is taken from a WhatsApp group in which Rabbi Linzer responds to halakhic questions from rabbis and community members.
QUESTION—Maryland, USA
When drafting a will, does one have to be worried about halakhic rules of yerushah (boys over girls, a double portion for the firstborn, etc.)? A suggested method for addressing this is to put one’s money in a trust to go into effect a minute before death, except for a small amount to fulfill halakhic yerushah requirements. Is this or some other approach required, or can one ignore the issue altogether and draft a will designating equal portions for daughters and sons, etc.?
ANSWER
Yes, you do need to worry about yerushah requirements. The Rishonim are explicit that dina demalkhuta (the law of the land) does not apply here. See Rambam in Hilkhot Nachalot 6:1.
A person cannot bequeath an inheritance to someone inappropriate and cannot disinherit someone even though it is technically a monetary matter (mamon), because the verse says “and it shall be to the children of Israel a decree of law (chukat mishpat),” meaning that this decree (chukah) will not change and a stipulation [to evade the requirements] is ineffective – whether the decedent was healthy at the time or on their deathbed, whether orally or in writing, it has no effect.
Some, similar to the Rambam, say dina demalkhuta doesn’t apply to yerushah because it is not a standard mamon area that can be modified by human law. To make an extreme comparison, this is similar to the unanimous view that secular divorce does not effect a halakhic divorce despite dina demalkhuta. Others say it doesn’t work simply because the principle of dina demalkhuta has a more limited scope and doesn’t apply in many areas.
So—yes—you have to do a halakhic will, which can be a document that goes along with your legal will. Many lawyers with frum clients know how to do this.
If you don’t do this, it would effectively be gezeilah, theft. Of course, the heirs could agree to go by the will despite being entitled to a different distribution. The problem would be if they don’t want to do so, for example if the male heirs want to cut out their sister. So, yes—please encourage your congregants to do this. You can have someone from the Beth Din of America, which has some expertise in the matter, come and speak about it at your shul.
To read this post in Spanish, click here
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