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Parshas Vayeishev:
Yosef’s Coat: Issues in Halachic Estate Planning
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Y O S E F ‘ S C O A T :
Issues in Halachic Estate Planning
For two sela’im of material, says Rav. For just two sela’im,
a chain of events was triggered beginning with sibling jealously,
leading to the sale of Yosef to Potiphar, and ultimately to the
enslavement of the entire Jewish people. All this because Yaakov Avinu awarded his son Yosef a special coat ma de of two sela’im-worth of material. The Rambam states in Hilchos Nachalos (Laws of Inheritance):
“Our Sages commanded that a person should not favor one son over
another while he is alive, even with regard to a small amount, in order
that they will not come to competition and jealousy like the brothers
of Yosef.”
At the end of his life, Yaakov continued to favor Yosef. He bequeathed him an extra portion of his estate (Bereishis
48:22), as though Yosef were the first-born son (which he was not).
Surprisingly, we find no complaint against Yaakov about what would seem
to be a repeat performance of a colossal mistake. Why not?
Furthermore,
by giving his younger son Yosef a larger inheritance, did Yaakov not
circumvent Torah inheritance law and go against the Torah’s intent? For
that matter, on what basis are we today entitled to distribute our
assets in any manner other than the line of succession explicitly prescribed by the Torah? Our own Bais HaVaad is  expert in assisting
people with issues of redistribution of estate assets – how may we
reconcile this service with the Talmud’s admonishment (Kesuvos 133) against interfering with the standard rules of inheritance?
The Torah Law of Inheritance
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The
Torah prescribes laws of inheritance that assure that an estate
transfers seamlessly from one generation to another. An inheritance
generally passes from father to sons, with the eldest son receiving a
double portion (unless there are no sons, daughters are not in the line
of inheritance). In addition, Torah Law provides a wife first lien on
her husband’s estate, from which she is entitled to maintain herself at
the same standard of living to which she was accustomed during her
husband’s lifetime, as long as there are assets remaining. (Although
the mechanism is different, this is conceptually akin to a modern
irrevocable testamentary trust, where the wife is the sole beneficiary
during her lifetime, entitled to a certain amount of income.)
Halachic Tools for Estate Planning
During the great shidduch
crisis of 2400 years ago (some things never change!), fathers were not
offering large enough dowries to prospective sons-in-law, fearing that
should the daughter pass away and her dowry be inherited by the
son-in-law, the dowry might ultimately pass to the son-in-law’s
children from a second marriage. That those unrelated children would
inherit equally with the related grandchildren was so upsetting a
contingency (especially in an era when a man was permitted more than
one wife at a time) it caused fathers to stop giving dowries
altogether, precipitating a shidduch crisis at the expense of their own daughters and the greater Jewish community.
To
rectify the situation, a decree of Be’nin Dichrin (literally, “Male
Children”) was made, which dictated that a father’s dowry would pass to
his related offspring
exclusively. The girls got their dowries, and the fathers were
enthusiastic – too enthusiastic. Some doting fathers began channeling
all of their estates via their daughters’ dowries, leaving their sons
completely out in the cold, and violating the spirit of the law which
was intended to provide reasonable security for daughters, not to
disinherit sons. For this reason, the Be’nin Dichrin fell into disuse
over time.
More successful for many centuries has been the use of the Shtar Chatzi Zachar. The Shtar Chatzi Zachar is an halachic
instrument of debt gifted during a person’s lifetime to his daughters
that conditionally imposes an obligation on the father’s estate unless
the
father’s sons willingly share their inheritance with their sister.
The lien threatening to encumber the entire estate is so formidable
that the sons end up with nothing if they choose not to comply with
their father’s wishes. Commonly,
this mechanism directs that the sons share with their sister an amount
equal to half of a son’s portion, hence the name Shtar Chatzi Zachar
(literally, “Contract for Half a Male’s Share”). After hundreds of
years, the Shtar Chatzi Zachar continues to play an important role in
halachic estate planning to this day.
Halachic Grounds for Redistributing an Estate
The
Gemara (Kesuvos 133), describing the Be’nin Dichrin, asks on what basis
the rabbis were permitted to create a “loophole” to circumvent the
Torah’s prescribed line of succession?
The Gemara explains that the halacha
takes into consideration not only the demands of the laws of
inheritance, but also the needs of the unmarried daughters, which in
this case were of such overriding urgency as to take priority over
standard Torah estate succession.
Rabbi
Moshe haLevi Mintz (Maharam Mintz) of 15th century Germany proposes
that since the Gemara sanctioned the Be’nin Dichrin on account of the
overwhelming needs of the daughters, the Shtar Chatzi Zachar – given to
brides as a form of dowry and serving the same important purpose as the
Be’nin Dichrin
– would also be sanctioned and encouraged by the same reasoning.
Importantly, this logic may also be applied to cases that might differ
from the original use of the Shtar Chatzi Zachar
as a bridal dowry, such as writing a will that includes already-married
daughters in the distribution of estate assets, where the estate
distribution is considered a delayed dowry.
While
adherence
to the Torah’s default formula for inheritance is generally
ideal, often there are other priorities which carry weight in halacha,
as we have seen in the cases of Be’nin Dichrin and Shtar Chatzi Zachar.
Serious halachic
consideration must be given to these concerns when assigning estate
assets. Included in these issues are a decedent’s right to benefit
himself by donating money to charity; to support a poor person or
talmid chacham; to avoid family strife and machlokes; or
even to favor one child over another (for example, as a debt of
gratitude or repayment to a child who took care of the parent in his
old age).
In
fact, one commentary posits that Yaakov favored Yosef in his will as a
show of appreciation for the effort and financial support that Yosef
expended for Yaakov and the entire family while they were
living in
Egypt. This type of favoritism is halachically
valid and is different from the kind Yaakov showed Yosef when he gave
him the coat. Receiving the coat, Yosef had not yet put himself out for
his family in any way that obviously justified special treatment. The
Rambam’s warning against parental favoritism (cited above) is referring
only to this type of unwarranted singling-out.
The Imperative of Halachic Guidance
In
exploring the issue of halachic
inheritance, we find that while Torah Law defines a line of succession,
it also defines priorities within the all-encompassing rubric of
halacha that must be considered when formulating a proper halachic
estate plan. Especially
when weighed together with the other halachic priorities justifying
redistribution, modern poskim frequently apply the view of Rabbi Shimon
ben Tzemach Duran (Tashbatz,
1300s Spain), who accepts that so long as the Torah’s mandated heirs
receive a significant share, monies may be bequeathed to others.
Variance from the Torah’s standard succession requires expert halachic advice; a standard will drawn up by a lawyer is typically not sufficient to enforce the decedent’s wishes in Beis Din.
It is not only permissible, it is advisable and often imperative that
estate issues be visited during one’s lifetime with qualified legal and halachic guidance, so that one’s legacy passes to the next generation in peace
and prosperity, in a way which is consistent with the solid and broad
framework of Torah.
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About the Author
Michoel
Lipman is founder and editor of Chareidio, a telephone-based news
service, and co-founder of Power2B, Inc., a technology company
developing innovative touch screens. An alumnus of Ohr Somayach and
Orchos Chaim yeshivos,
Michoel graduated with a BA in music, and spent 15 years as a Certified
Financial Planner and asset management specialist. He now lives in
Jerusalem with his wife and children. |
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