גריי מאטר ג, תכנון עיזבון, הבעיה ההלכתית ופתרונות אפשרייםGray Matter III, Estate Planning, The Halachic Dilemma and Potential Solutions

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1Although Torah law dictates that wives do not inherit their husbands’ estates and that daughters inherit nothing from a testator who has sons, the most commonly desired distribution today is for sons and daughters to share equally in the estate and for one’s wife (if she is the mother of his children) to inherit the entire estate if he predeceases her. How can one achieve this personal objective without violating the halachic requirements of yerushah? One cannot simply stipulate that he wants his wife¹Rav Mordechai Willig notes (in an essay entitled “Inheritance Without a Fight,” available at www.torahweb.org) that in the common case of joint ownership of a home or other assets, the surviving spouse probably is the owner according to the Halachah as well (as we discussed in an earlier chapter). and/or daughters to inherit, as Halachah regards this as an invalid stipulation (Bava Batra 8:5). Even though we accept the opinion of Rabi Yehudah that “B’davar sheb’mamon tena’o kayam” (monetary stipulations are valid even if they contradict Torah law; Bava Metzia 94a and Shulchan Aruch E.H. 38:5), stipulations made in contradiction to the Torah rules of yerushah are invalid. The Rambam (Hilchot Nachalot 6:1) explains that the Torah (Bemidbar 27:11) describes the rules of inheritance as “chukat mishpat” (a decree of judgment), meaning that it applies in all circumstances and cannot be overridden by stipulations.

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2Thus, we are left in a quandary: how can a person distribute his estate to non-halachic heirs, such as daughters or a wife, in a halachically acceptable manner? We shall discuss this predicament from several angles, starting with the question of whether the principle of dina d’malchuta dina, the halachic obligation to follow the law of the land in which we reside (as codified in the Shulchan Aruch C.M. 369), can be invoked to solve the problem.

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3Dina D’malchuta Dina: A Ruling of the Rashba

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4In a variety of contexts, the Gemara mentions the rule of dina d’malchuta dina, which obligates us to follow civil laws such as taxes and traffic regulations.²See our earlier chapter regarding contemporary financial arrangements between a husband and wife for a more thorough discussion of the applicability of this rule when it contradicts the monetary laws of the Torah. However, the rule of dina d’malchuta dina does not apply to yerushah. This point is best illustrated by a responsum of the Rashba (6:254) concerning the following case:

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5A woman, whom we shall call “Leah,” daughter of “Reuven,” married “Shimon” and gave birth to a daughter. Shortly afterward, Leah and her daughter both died. Reuven subsequently claimed, based on the law of the land, that he had the right to reclaim the large dowry he had given Leah. Shimon, on the other hand, claimed that he had the right to the dowry as per the Halachah that the husband is the primary heir of his wife. The Rashba responded sharply that the halachic standard prevails over dina d’malchuta dina in such a situation. He writes that dina d’malchuta dina applies only to external matters such as taxes and the functioning of a country, but not to internal matters between Jews. If Jews would embrace the civil laws to govern even internal matters, it would lead to complete abandonment of Talmudic civil law. “In that case,” argues the Rashba, “what would become of the holy books of the Mishnah and the Talmud? God forbid, such a thing must never happen in Israel, lest the Torah wrap itself in the sackcloth of mourning.”

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6This responsum of the Rashba is accepted as normative Halachah, cited by both the Beit Yosef (C.M. 26 s.v. Katav Harashba) and the Rama (C.M. 369:11). Dina d’malchuta dina, then, does not override the Halachot governing yerushah. Accordingly, if one does not take active measures to ensure that his estate is distributed in conformity with the Torah’s order of inheritance, his heirs, as defined by civil law, will violate Halachah. If there is no will, the civil authorities will distribute his estate in accordance with the state laws of intestacy, which almost invariably differ from the laws of the Torah (as noted by Rav Feivel Cohen in Kuntress Midor L’dor p. 6). By not taking the necessary measures, one will cause money to be taken from his halachic heirs and to be given to those who are not halachically entitled to the estate. Halachah views this as unmitigated theft on the part of the non-halachic heirs (see Chiddushei Rav Akiva Eiger C.M. 26:1).³Beneficiaries who are not halachically entitled to receive their portion of an estate should consult a Rav for guidance on how to rectify this problem.

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7Rav Moshe Feinstein’s Ruling

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8It is clear from the Rashba that if one dies intestate, Halachah, not civil law, must control the distribution of his assets. Rav Moshe Feinstein, however, argues (Teshuvot Igrot Moshe E.H. 1:104) that a will drafted in compliance with civil law is halachically valid and that the heirs as set forth in the will are not guilty of theft even if Halachah normally excludes them from inheriting. Rav Moshe acknowledges that since a will attempts to bestow a gift (bequest) to be made after the death of the testator, the will normally is not valid in the eyes of Jewish law. This is because halachic heirs inherit immediately upon the death of the testator. The testator then ceases to own the object in question and therefore is unable to enact a proper kinyan (transfer of title) to the beneficiaries (Gittin 13a). Nevertheless, according to the law of the land, one may transfer property after death even though it no longer belongs to the testator. Rav Moshe writes:

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9It appears, in my humble opinion, that a [secular] will of this kind, which will definitely be put into effect by the civil authorities of the country in which he resides, does not need a kinyan, for there is no greater kinyan than this [transfer effectuated by the civil law]. Therefore, since a kinyan is not necessary, [the secular will] is halachically effective, even to the extent of receiving money in place of halachic heirs.…And this is a significant basis for the practice [of observant Jews] in this country [the United States] to rely on these types of [secular] wills.

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10Critique of Rav Moshe’s Opinion

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11Rav Moshe’s ruling aroused great opposition. Dayan Aryeh Leib Grossnass, for instance, wrote a thorough critique of Rav Feinstein’s ruling (Teshuvot Lev Aryeh 2:57). The authorities who concur with Dayan Grossnass include Rav Ezra Basri (Dinei Mammanot 3:208-213), Rav Feivel Cohen (Kuntress Midor L’dor pp. 1-4), Rav Zalman Nechemia Goldberg (Techumin 4:342-344), Rav Hershel Schachter (in a lecture to rabbinical students at Yeshiva University), and Rav Mordechai Willig (in an essay entitled “Inheritance Without a Fight,” available at www.torahweb.org). Several classical poskim contradict Rav Moshe’s position, including the Chatam Sofer (Teshuvot Chatam Sofer C.M. 142), Rav Yaakov Ettlinger (Teshuvot Binyan Tzion Hachadashot 24), and Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:34). All of these authorities reject Rav Moshe’s conclusion and would not sanction the use of a secular will without supplementary halachic mechanisms.

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12Dayan Grossnass cites a passage from the Gemara (Temura 25a) that seems to clearly disprove Rav Moshe’s contention. The Gemara teaches that when there is a conflict between an individual’s directive and Hashem’s directive, the latter prevails. For example, if one declares that when a firstborn animal will be born it will be a korban olah (burnt offering), Hashem’s designation of the animal from birth as a bechor (a firstborn, which must be brought as a sacrifice; Shemot 13:2) prevails over the individual’s desire. Similarly, Dayan Grossnass argues, if one stipulates that at death his assets should belong to a halachically unrecognized heir, Hashem’s directive that the assets belong to the halachic heir prevails. Rav Hershel Schachter remarked that he finds this proof particularly convincing.

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13Dayan I. Grunfeld (The Jewish Law of Inheritance pp. 81-82) presents another disproof of Rav Moshe’s theory. He cites the following passage from the Sefer Hachinuch (400):

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14Hashem teaches that the right of the heir to the hereditary estate is inexorably tied to the estate, and as soon as the individual who transmits the inheritance dies, the heir’s right to the inheritance immediately takes effect on the property.…The relationship of the person who transmits the inheritance to the heir is such as if the bodies of the two persons were glued together, and what emanates from one immediately reaches the other. Hence, Chazal teach that if an individual states, “My son shall not inherit me” or…“My daughter shall inherit me in a case where there is a son,” or [if the testator makes] any similar [stipulation that contradicts the Jewish law of inheritance], these stipulations are entirely invalid. One cannot uproot the word of Hashem, Who ordained that the halachic heir inherits the one who transmits the inheritance.

ט״ו

15As explained by the Sefer Hachinuch, as soon as a person dies, his halachic heirs automatically, without any interruption, possess title to the inheritance. From a halachic perspective, this appears to preclude civil authorities from making a gift on behalf of the deceased. Since the estate belongs to the halachic heirs from the moment of death, a kinyan cannot be enacted on behalf of the deceased, as the estate no longer belongs to him. Therefore, one cannot empower anyone – not even a government authority – to distribute his property in disagreement with Halachah. If an individual signs a secular will (without an adequate halachic supplement), he is effectively directing the civil authorities to take assets improperly from his halachic heirs.

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16Accordingly, most poskim require more than a secular will alone to enable one to bequeath his estate to non-halachic heirs. We therefore shall have to resort to several more involved procedures.

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17Mitzvah L’kayeim Divrei Hameit

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18The Gemara (Gittin 14b) articulates the principle that one must obey the wishes of a deceased person. The source for this rule is Yosef Hatzadik, who honored his father Yaakov’s command to bury him in the Land of Israel. The Mordechai (Bava Batra 600) explains that the Gemara intends this rule to mollify the anxieties of the seriously ill by assuring them that others will honor their instructions should they expire.⁴See Teshuvot Maharsham 2:224:12, who discusses whether this rule is of biblical or rabbinic origin. At first glance, this would seem to allow any testator to impose his wishes for asset distribution upon his heirs and family.

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19Unfortunately, this does not fully address our issue. Rabbeinu Tam (cited in Tosafot Gittin 13a s.v. V’ha) limits the applicability of this principle to honoring instructions relating to asset transfers in a situation in which the giver had placed the assets in escrow (deposited them with a third party) before his death.⁵For a discussion of the basis for Rabbeinu Tam’s opinion, see the sources cited in Pitchei Choshen 8:4 footnote 82. Although many Rishonim dispute this ruling, the Shulchan Aruch (C.M. 252:2) codifies Rabbeinu Tam’s view as normative Halachah. Accordingly, the rule of mitzvah l’kayeim divrei hameit does not apply to the posthumous directions of a secular last will and testament, because the money and property involved are not escrowed until after death. ⁶Interestingly, Rav Feivel Cohen wrote to me that money deposited in IRAs is considered to be deposited in the hands of a third party, and mitzvah l’kayeim divrei hameit would apply to such assets even according to Rabbeinu Tam. The Pitchei Choshen (8:1 footnote 65) rules that the same applies to savings accounts (and even to the interest accrued in such an account) in a bank where one designates in writing to whom the money in the account should be given in case of his death. He also rules that it is entirely acceptable to name non-Halachic heirs as beneficiaries of a life insurance policy, and the non-Halachic heirs are entitled to the money they receive from it. Any attempt to “deposit” assets after death with a third party would be ineffective, because the halachic directives for distribution would have already been triggered at the time of death. Additionally, according to the Ran (Gittin 5b in the pages of the Rif), the rule of mitzvah l’kayeim divrei hameit applies only to adults; minor heirs are not obligated to honor the requests of the deceased. ⁷For further discussion and debate concerning this point, see the sources cited in Pitchei Choshen 8:4 footnotes 82 and 87. Thus, the rule of mitzvah l’kayeim divrei hameit does not solve the problems inherent in a secular will if there are minor heirs even according to those who disagree with Rabbeinu Tam.

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20Responsa of the Binyan Tzion and Achiezer

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21Despite the Shulchan Aruch’s acceptance of Rabbeinu Tam’s ruling as normative, some major Acharonim do not entirely dismiss the dissenting views in the Rishonim. One such authority is Rav Yaakov Ettlinger (Teshuvot Binyan Tzion Hachadashot 24), who was approached by an individual to whom the civil courts had awarded money as stipulated in a secular will. The questioner wanted to know if Halachah entitled him to keep the money in light of the fact that he was not a halachic heir. He thought that he would be required to return the bequests to the halachic heirs, but Rav Ettlinger replied that he could keep the money. Since the questioner was the muchzak (the one in possession of the object in question), the burden of proof fell upon those who sought to extract the money from him, i.e. the halachic heirs. Accordingly, since many Rishonim, including the Ramban (Gittin 13a s.v. L’olam) and the Ritva (ibid. s.v. Rav Zvid),⁸The Shach (252:4) and the Sma (252:8) present the opinion of the Ramban and the Ritva. They believe that mitzvah l’kayeim divrei hameit applies as long as the deceased ordered the halachic heirs to carry out his wishes. A secular will seems to accomplish this goal. disagree with Rabbeinu Tam, the questioner may claim (“kim li”) that he is abiding by the opinions that reject Rabbeinu Tam’s conclusion, making it the responsibility of the halachic heirs to prove that Rabbeinu Tam is correct. Thus, a muchzak is able to keep the money he received under a secular will.

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22Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:34) is inclined to endorse Rav Ettlinger’s ruling, though he notes that the Teshuvot Har Hamor (39) and the Teshuvot Chessed L’Avraham (C.M. 43) believe that the muchzak is not permitted to keep the money. Though he does not issue a definitive ruling on this question, Rav Chaim Ozer writes (Kovetz Igrot Achiezer, Divrei Halachah 25) that the practice of batei din is to honor secular wills probated in civil courts, and he reports that the batei din even appoint executors to distribute the deceased’s assets in accordance with the secular will. Dayan Grossnass (Teshuvot Lev Aryeh 2:57) takes this last addition to mean that Rav Chaim Ozer’s leniency does not apply if the assets were distributed by a civil court-appointed executor. In fact, he rules that money received by a non-halachic heir from a secular will probated and distributed by a civil court is considered stolen. One should consult his Rav about this matter, as it is not clear whether this is the conclusive interpretation of Rav Chaim Ozer’s words.

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23Even without Rav Ettlinger, Rav Chaim Ozer suggests, we can enforce those parts of secular wills that concern bequeathals to tzedakah based on the rule of amirah l’gavoha k’mesirato l’hedyot (Kiddushin 28b). This rule establishes that a verbal acceptance of financial obligation to a holy cause is equivalent to handing an object to an ordinary individual – both are binding and irrevocable.⁹See Encyclopedia Talmudit (2:40-42) for a discussion of the parameters of this rule. Accordingly, when a testator bequeaths money to tzedakah in a secular will, Halachah might regard his statement of intent as the equivalent of depositing the money in the hands of the charity, which even Rabbeinu Tam would accept as a valid transfer.

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24We must emphasize that Rav Ettlinger and Rav Chaim Ozer do not condone sole reliance upon a secular will l’chatchilah (ideally). They merely argue that b’dieved (post facto), the legatees may keep the money distributed to them and need not return it to the halachic heirs. Moreover, Dayan Weisz (Teshuvot Minchat Yitzchak 6:165) disagrees with Rav Ettlinger and Rav Chaim Ozer and rules that a beit din will not honor a will probated in a secular court.¹⁰For further discussion of whether a beit din will honor a will probated in civil court based on the principle of mitzvah l’kayeim divrei hameit, see Pitchei Choshen 8:4 footnote 85. Accordingly, the principle of mitzvah l’kayeim divrei hameit does not sanction the use of a secular will alone and should not be relied upon as a solution to the halachic requirements of yerushah.

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25A New, Practical Solution

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26A new suggestion, based on mitzvah l’kayeim divrei hameit, may yet provide a halachically viable solution to the yerushah issues in a manner that is consistent with common secular estate planning. This involves establishing a revocable living trust, a contractual arrangement between a grantor who forms the trust, co-trustees (preferably the grantor and another person) who manage the trust, and beneficiaries (the grantor and his family members, including non-halachic heirs) who receive the economic benefits of the trust. This approach to a living trust is fundamentally different from the more simplistic approach of most living trusts, in which the person who forms the trust would be the sole grantor, trustee, and beneficiary until death. The latter approach is less likely to be respected as a halachically valid legal entity.¹¹Poskim in general do not recognize legal entities that lack substance. For example, Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C. 1:90) does not permit a store to operate on Shabbat merely because its owner incorporated the business. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:28) rules that a person is not shielded from ribbit (interest) restrictions simply because he borrows money from a corporate entity – if Jews control and run that corporation, the borrower violates the ribbit prohibition (see, though, Teshuvot Igrot Moshe Y.D. 2:62). By the same token, Rav Mordechai Willig told me that an object of avodah zarah (idolatry) or chametz on Pesach that is passed on as part of an estate must be disposed of by the halachic heirs, for they cannot claim that the estate owns the items. If, however, the former kind of trust can be regarded by Halachah as a legal entity (with participants other than the grantor constituting the necessary third party), and if the subsequent transfers of assets to the trust can be characterized as lifetime gifts, then this commonly-used planning technique may afford a new method of complying with the Torah requirements concerning yerushah.

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27Rav Feivel Cohen wrote two letters to me concerning this issue. In the first, he wrote that Halachah does not recognize a trust as a legal entity per se – merely placing assets in a trust is not regarded as placing them in the hands of a third party. He believes that money deposited in a trust still belongs to the grantor according to Halachah, since the grantor can revoke the trust at any time that he wishes to do so. In the second letter, however, Rav Cohen clarified that if a trust has a co-trustee who can legally spend the trust money on behalf of the beneficiaries, the money is considered to be deposited in the hands of a third party, allowing the application of mitzvah l’kayeim divrei hameit. Rav Cohen considers this form of a trust to have more substance, granting it recognition as a separate entity. This major ruling provides a practical mechanism for leaving assets to non-halachic heirs in a manner that is consistent with Halachah. One should consult his Rav and his attorney to check whether this is a viable option for his estate plan.

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28Kibbud Av Va’eim and Moral Considerations

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29One should also consider that even in a case in which Halachah does not technically mandate honoring the wishes of the dead, one may have an ethical obligation to act lifnim mishurat hadin (beyond the letter of the law) and honor them anyway (see, for example, Teshuvot Maharsham 2:224 and Rav Ezra Basri’s Sefer Hatzava’ot p. 12). Rav Yaakov Kaminetzky (cited in Emet L’yaakov Al Shulchan Aruch p. 455) rules that even though, strictly speaking, one is not obligated to honor a secular will that is halachically invalid, it nevertheless is “hiddur mizvat kibbud av va’eim” (an enhanced level of fulfilling the obligation to honor one’s parents) to do so.¹²The principle of mitzvah l’kayeim divrei hameit also has an ethical dimension (see Ramban to Gittin 13a s.v. L’olam). This serves as another moral imperative for the halachic heirs to honor the dictates of a secular will.

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30In practice, this means that if one’s parents directed in the will that the estate be divided equally among their sons and daughters, the halachic heirs should give of their halachic entitlement to the non-halachic heirs as a gift. This can be accomplished very easily with a kinyan sudar, a transaction that is effected by the beneficiary or his agent giving a symbolic token to the grantor.¹³Most people are familiar with this kinyan from the sale of chametz before Pesach and from the execution of the ketubah before a wedding. It is advisable for a person to ask his Rav for help in executing the kinyan sudar properly, and to consult his attorney regarding the tax consequences of performing such a kinyan. If, however, the halachic heirs insist on following the strict letter of the law and are unwilling to grant portions of the estate to the non-halachic heirs in accordance with the will, the problem remains unsolved. Thus, there still is a need for a means for non-halachic heirs to inherit even according to technical Halachah.¹⁴I once posed a related question to Rav Zalman Nechemia Goldberg. A testator dictated in his secular will that money be given to a specific “secular” Jewish charity – an Israeli hospital that serves an overwhelmingly secular Jewish community. The testator’s children thought that the money should instead be given to a more “religious” Jewish charity and asked if they could deviate from the wishes of the deceased. The children felt that the secular charity had a much larger pool of potential donors, leaving the religious charity with more of a need for the money. Rav Zalman Nechemia ruled in accordance with the aforementioned decision of Rav Chaim Ozer that money designated as tzedakah must be given even though the rest of the will is halachically invalid. He ruled that it is improper to change the charity to one other than that designated by the testator.

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31Shtar Chatzi Zachar and its Contemporary Variation

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32As we have discussed, modern patterns of estate planning necessitate a method to facilitate non-halachic heirs’ inheritance of a portion of the estate without violating Halachah. American poskim in the last few decades have developed a variation of the traditional shtar chatzi zachar document that can accomplish this goal, providing an ideal solution to yerushah in a modern context.

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33The Traditional Shtar Chatzi Zachar

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34One classic method of distributing an inheritance to daughters is through a shtar chatzi zachar. The Rama (E.H. 113:2 and C.M. 281:7) records that this was the commonly accepted way to provide each daughter with a share in the estate. This procedure involves the father obligating himself at the time of the daughter’s wedding, as part of the dowry he provides for his daughter, to pay her a very large sum of money (larger than the expected value of the estate), so that the heirs will be motivated to avoid the debt. He stipulates that the debt will be chal (effective) only as of one hour preceding his death. This debt passes to the halachic heirs, generally the sons, although the concept can be extended to any stages of the Torah order of yerushah. However, the father includes a provision voiding the debt if the halachic heirs give the daughters a share (e.g. each daughter receives one-half of what each male child receives) of the inheritance.

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35The Maharil (Teshuvot Maharil 88), who mentions writing “documents of inheritance” on behalf of one’s daughters, is a source for the practice recorded by the Rama. The shtar chatzi zachar was common among Ashkenazic Jews, as is evidenced by the extensive responsa literature surrounding it (summarized in the Pitchei Teshuvah C.M. 281:8-13). Indeed, the Kesef Kedoshim (C.M. 282) writes, “We have not heard that even the most pious of individuals has refrained from writing a shtar chatzi zachar.”

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36This technique raises a number of issues. If the debt is made too large, the shtar may be challenged as an asmachta.¹⁵Asmachta refers to a conditional obligation known to have been accepted under the assumption that the condition never would be fulfilled; see Bava Metzia 66a and 73b and Nedarim 27b. The testator can remedy this risk by inserting a clause stating that the debt takes effect “as of now” (mei’achshav) and was effected with a kinyan in a beit din chashuv (an esteemed rabbinic court; Kuntress Midor L’dor pp. 14-15 and Pitchei Choshen 8:175).¹⁶The impact of executing a kinyan “mei’achshav” and of having it effected in an “esteemed rabbinic court” is presented in Shulchan Aruch (C.M. 207:14-15) and is explained at length in Gray Matter 1 pp. 13-14.

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37In terms of applicability to the contemporary American situation, one might wonder whether creating such a debt creates concern for gift tax consequences. Rav Feivel Cohen wrote to me that it is halachically feasible to name a charity (instead of a daughter) as the creditor to help address such concerns. Rav J. David Bleich, in his contemporary adaptation of this shtar, addresses this concern by adding a clause that includes the statement, “This instrument shall be regarded as of no effect whatsoever in any proceedings brought before any civil court of competent jurisdiction.”¹⁷The fact that the document is not applicable in civil law does not detract from its halachic validity; see Teshuvot Chatam Sofer O.C. 113, Teshuvot Divrei Chaim O.C. 2:37, and Rav Shlomo Yosef Zevin’s L’or Hahalachah p. 122. Mechon L’hoyroa (Making a Will the Jewish Way p. 7) advises that the executed shtar be kept with a third-party, Orthodox Jewish attorney who will store it with the documents of the will and/or trust and who will present it only if the halachic heirs challenge the validity of the secular will in beit din.¹⁸Rav Hershel Schachter (in a shiur delivered at Yeshiva University) added that the shtar chatzi zachar does not violate the rule of ein bereirah (there is no retroactive determination of facts; see Encyclopedia Talmudit 4:216-246 for a full explanation) for biblical-level obligations. Even though the size of the share that the daughter will receive will be determined only after the day of death, we apply the rule of ein bereirah only regarding the primary obligation, not the details of the implementation, as explained by the Ran (Nedarim 45b s.v. Rabi Eliezer). In our case, the primary obligation is the debt; the fact that the debt exists is not clarified retroactively. The potential release from the debt and the details of implementation (the precise size of a half share in the estate) are clarified retroactively, but these are not subject to the rule of ein bereirah.

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38Shtar Shaleim Zachar

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39In addition to the shtar chatzi zachar, there is another traditional approach to including daughters in wills. Rav Zalman Nechemia Goldberg (Techumin 4:344) notes that the Ketzot Hachoshen (33:3) refers to the use of a shtar shaleim zachar, which, using the same mechanism as the shtar chatzi zachar, gives daughters a full share in the inheritance.¹⁹Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:110) also makes reference to this type of document. One may legitimately make use of this mechanism. Indeed, Rav Asher Weiss relates that Rav Akiva Eiger wrote a shtar shaleim zachar at his daughter’s wedding to the Chatam Sofer.

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40Contemporary Variations on the Shtar Chatzi Zachar

מ״א

41In the past few decades, American poskim have devised a contemporary variant of the traditional shtar chatzi zachar. In many communities, a dowry is no longer expected, so the shtar is not executed at the time of the wedding. Rather, a supplement to a secular will is written by the testator wherein he records that a debt was made to the non-halachic heirs, again with the stipulations that it will take effect an hour before death and that it will be waived if the halachic heirs follow the dictates of the secular will. The debt is formally created by the testator accepting a symbolic token – the kinyan suddar – preferably under the guidance of a Rav who can ensure that this is done properly.

מ״ב

42There are at least five alternative versions of how to create such a document. Rav Cohen presents somewhat lengthy English and Hebrew documents in his Kuntress Midor L’dor.²⁰See Pitchei Choshen 8:170-171, who questions many of the concerns Rav Cohen endeavors to circumvent. A shorter version is presented by the Mechon L’hoyroa in its Making a Will the Jewish Way (p. 10 in the Hebrew section and p. 8 in the English section), although it requires that a separate document be written on behalf of each non-halachic heir. Rav Bleich has developed his own version, as has Rav Mordechai Willig (Chavrusa, Kislev 5740 and in the aforementioned article available at www.torahweb.org). Rav Willig’s version is quite simple and straightforward, and many in the Orthodox community make use of it.²¹Because of these advantages, the Rabbinical Council of America has chosen Rav Willig’s version to be posted for download on its website, www.rabbis.org. Rav Hershel Schachter’s ideas regarding this shtar, which constitute the fifth version, appear in the Journal of Halacha and Contemporary Society (1:130-132).

מ״ג

43Rav Schachter explained to me that a testator merely needs to sign the shtar chatzi zachar - no further action is required. It takes effect even though the beneficiary of the debt is unaware of it because of the halachic principle “Zachin l’adam shelo b’fanav” (one may acquire something beneficial on behalf of another individual even if the latter is unaware of the acquisition; Gittin 1:6). The heirs, both halachic and non-halachic, also need not be aware of this document, Rav Schachter explained, as all of the transfers happen automatically. Whether they know it or not, the non-halachic heirs receive the money as a result of the need to relieve the halachic heirs of the conditional debt, not as a proper inheritance. The document attesting to the conditional debt is needed only to uphold the halachic validity of the secular will if the halachic heirs challenge it in beit din; the will can be executed even without the heirs’ awareness of the document’s existence. The document itself, though, must be deposited with someone other than the testator in order for the acquisition of the debt to take effect, since the process of zachin l’adam shelo b’fanav involves one person handing something to another person to acquire on behalf of a third party.

מ״ד

44Rav Cohen (Kuntress Midor L’dor pp. 24-25) requires that steps be taken to render the secular will tamper-proof according to halachic standards. However, none of the other American poskim who address this issue has stated such a requirement. First, poskim have debated for centuries as to whether the standards of non-Jewish courts for rendering documents tamper-proof are accepted by Halachah (see the two opinions cited in Rama C.M. 68:1 and Aruch Hashulchan C.M. 68:6). Second, the measures taken by American courts are quite extensive, and therefore might be acceptable even according to the stricter opinion.²²See Martin Shenkman’s Estate Planning pp. 102-103 for details regarding these standards. Moreover, Attorney Martin Shenkman informed me that some of the measures that Rav Cohen advocates might render the document invalid in civil court.

מ״ה

45Should a Minor Portion of One’s Estate be Divided According to the Torah Standards?

מ״ו

46The Pitchei Choshen (8:175 note 2) urges that a significant portion of one’s estate be designated to be distributed in accordance with Torah law (such as the bechor receiving a double portion and the daughters not receiving a portion if there are sons). Rav Hershel Schachter (in a shiur delivered at Yeshiva University), though, recommended that only a token amount (such as one thousand dollars) be distributed in accordance with the traditional halachic standards. Indeed, Rav Mordechai Willig (in the aforementioned essay available at www.torahweb.org) echoes Rav Zalman Nechemia Goldberg’s approach (Techumin 4:349) that a small portion of the estate, such as sefarim (holy books), should be divided in accordance with the Torah’s laws of inheritance. On the other hand, both Rav Cohen and the Mechon L’hoyroa make no mention of disbursing any amount in this fashion. Rav Cohen wrote to me that in principle he agrees with the Pitchei Choshen, but that he is concerned that this will cause bitter animosity in families. One solution to this problem would be to follow Rav Goldberg, Rav Schachter, and Rav Willig and designate only a nominal amount to be distributed according to Halachah, a compromise that will both recognize the Torah laws of yerushah and preserve family harmony.²³Rav Schachter told me that we find other cases of technical halachic circumvention where steps are taken to observe the Torah law at least in a minimal fashion. He noted that Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 4:62) cites the Ben Ish Chai (year one, end of Parashat Ki Tavo), who refers to the practice of pious Jews who, after writing a prozbul (a document to circumvent the cancellation of debt at the end of the shemittah year), lend a nominal sum to a friend. After Rosh Hashanah, when the borrower comes to pay the loan, the lender refuses to accept repayment and states, “Meshameit Ani” (I cancel the loan or the loan is canceled), thus fulfilling the cancellation of debts mandated by Halachah. Rav Ovadia notes that in order for this method to be effective, one must stipulate that the loan is due prior to the eve of Rosh Hashanah. Similarly, Rav Shlomo Yosef Zevin (L’or Hahalachah p. 126) records the practice of those observant farmers who rely on the heter mechirah (the sale of Israeli farm land to a non-Jew to avoid shemittah agricultural restrictions) to set aside a portion of land to be excluded from the sale so that shemittah regulations can be kept at least on a small parcel of the field.
Rav Schachter added that a nominal amount of the estate should be divided in accordance with Torah rules only if this will not create animosity within the family.

מ״ז

47Lifetime Gifts

מ״ח

48Another method by which one may provide daughters with a share in the inheritance is to make a gift to them during his lifetime. Although daughters do not inherit, a person is perfectly permitted to present them with monetary gifts while he is alive. Attorney Martin Shenkman informs me that there are two serious drawbacks to giving such gifts. First, many personal and practical problems are created. If substantial gifts are made to the daughters while the parents are alive, considerable resentment from the sons may result. Practically, it is difficult to equalize lifetime gifts to the daughter with testamentary bequests to the sons on an after-tax basis. Secondly, Halachah recognizes a gift as valid only if the donor owned the money or property at the time he made the gift – one cannot transfer title of something that he does not yet own or does not yet exist (ein adam makneh davar shelo ba la’olam). Thus, one can give to a daughter only that which he already owns, as noted by the Rama (C.M. 281:7), so his gift can account for all the same properties as the will only if the gift is given immediately before death. Therefore, it is difficult to carry out equal distribution to children using outright lifetime gifts, making the modern variation of the shtar chatzi zachar much more preferable.²⁴Israeli poskim do advocate including non-halachic heirs in the estate by making genuine gifts (as opposed to those of shtar chatzi zachar) that will take effect an hour before death (see Gesher Hachaim 1:37-42 and Rav Shlomo Sha’anan’s essay in Techumin 13:319-320). This is not a suggested method for those residing in the United States because of gift tax implications.

מ״ט

49Conclusion

נ׳

50Several mechanisms are available to those who wish to include non-halachic heirs in their wills. Although secular wills do not, according to most opinions, suffice alone, they do generate some level of obligation upon the heirs. More significantly, the methods of revocable living trusts (according to Rav Feivel Cohen) and shtar chatzi zachar (in its various forms) provide full flexibility to distribute one’s estate as he sees fit. God willing, the use of these mechanisms will enable families to achieve both full adherence to Halachah and shelom bayit.