Sources and Reasoning:
Who Are the Torah Heirs and the Order of Inheritance
In Parashat Pinchas [Bamidbar, chapter 27, verses 8–12], the Torah sets forth the order of inheritance as follows:
Speak to the Children of Israel, saying: If a man dies and has no son, you shall transfer his inheritance to his daughter. If he has no daughter, you shall give his inheritance to his brothers. If he has no brothers, you shall give his inheritance to his father’s brothers. If his father has no brothers, you shall give his inheritance to his relative who is closest to him from his family, and he shall inherit it.
It is clear that one who has no sons is inherited by his daughter; if he has no children at all, his brothers inherit him. The Gemara in Bava Batra further explains that if he has no brothers, his sisters inherit him, since they inherit by virtue of their father. If he has neither brothers nor sisters, his father’s brothers inherit him.
This is likewise explained in greater detail in the words of the Shulchan Aruch, Choshen Mishpat, siman 276, se’if 1:
The order of inheritances is as follows: One who dies is inherited by his son. If he has no son, we see whether the son has descendants, whether male or female, until the end of all generations; they stand in his place and inherit everything. If the son has no descendants, if he has a daughter, she inherits him. If he has no daughter, if she has descendants, whether male or female, until the end of all generations, they inherit everything. If she has no descendants, the inheritance returns to the deceased’s father. If his father is no longer alive, it returns to his descendants, who are the deceased’s brothers. If he has a brother, he inherits everything. If he has no brother, but the brother left descendants until the end of all generations, they stand in his place to inherit. If he has neither a brother nor descendants of a brother, the inheritance returns to the deceased’s sister or to her descendants until the end of all generations. If he has neither a sister nor descendants of a sister, it returns to the deceased’s paternal grandfather. If he is no longer alive, it returns to his descendants, who are the deceased’s father’s brothers, if he has brothers, or to their descendants until the end of all generations. If the deceased’s father has no brothers or descendants of brothers, it returns to the deceased’s father’s sister or to her descendants until the end of all generations. If the deceased’s father has neither a sister nor descendants of a sister, it returns to the deceased’s great-grandfather. If he is no longer alive, he bequeaths it to his descendants, who are the deceased’s paternal grandfather’s brothers, or to their descendants until the end of all generations. If the deceased’s paternal grandfather’s brothers or their descendants are not found, it returns to the deceased’s paternal grandfather’s sister or to her descendants until the end of all generations. In this manner, the inheritance continues upward until Reuven.
A Wife Does Not Inherit Her Husband
From the above, it is clear that a person’s children inherit him, while his wife does not inherit him. The reason is that the maternal family is not halachically termed a family, as stated in the Gemara, Bava Batra 109b: “According to their families, according to their fathers’ houses”—the paternal family is called a family; the maternal family is not called a family. Similarly, the Shulchan Aruch, Choshen Mishpat, siman 276, se’if 4, rules that a mother does not inherit from her son or daughter. However, when a husband predeceases his wife, she receives her ketubah in the amount stipulated therein.
Furthermore, the Knesset HaGedolah, siman 281, cites the Mabit, who writes that even if a husband and wife stipulate at the time of marriage that they will inherit one another, their stipulation is ineffective.
Although inheritance is a monetary matter, it cannot be made conditional. The reason is that the Torah determined who the heirs are, and stipulating otherwise is considered a stipulation contrary to what is written in the Torah, as explained in the Gemara, Yevamot 36b.
One who distributes his property orally, increasing the share of one and decreasing that of another, or giving the firstborn an equal share with them—his words are valid. But if he says this is by way of inheritance, he has said nothing. If he writes “as a gift,” whether at the beginning, the end, or the middle, his words are valid.
Rashi explains: “Increasing the share of one and decreasing that of another, or giving the firstborn an equal share with them—his words are valid”—because he gave to all of them during his lifetime, and this is not an inheritance, such that the firstborn would take a double portion or the ordinary sons would take equal portions. Rather, whatever he increased, he increased, and whatever he decreased, he decreased. “But if he says this is by way of inheritance”—such-and-such a person shall inherit this field, and such-and-such a person shall inherit that field—he has said nothing, because he stipulated contrary to what is written in the Torah, and his stipulation is void, since he did not divide equally among the ordinary sons and give the firstborn a double portion.
It should be added that for this reason, civil law under which a wife inherits her husband when they have no children cannot be given halachic effect either. This is because the law is effective by virtue of custom, and custom is effective by virtue of stipulation; where a stipulation is ineffective, neither law nor custom is effective. As explained by the Rashba in a responsum, volume 6, siman 254, cited by the Beit Yosef in siman 26, and ruled by the Rema, Choshen Mishpat, at the end of siman 369, as follows: One who marries a woman in a place where they adjudicate according to the laws of idolaters, and his wife dies, her father or other heirs cannot say that whoever marries does so with the custom in mind, and that the matter should be adjudicated according to the laws of idolaters—under which, if she dies, her husband does not inherit her—or anything similar. This is not included in dina d’malchuta dina, for we apply dina d’malchuta dina only in a matter that benefits the king or serves the welfare of the inhabitants of the state, but not to adjudicate according to the laws of idolaters, for otherwise all Jewish laws would be nullified.
One Who Wishes to Leave His Property to His Wife Should Write a Will During His Lifetime
Therefore, one who wishes his wife to receive his property after his passing must write a will in which he gives his property to his wife as a gift during his lifetime, effective from today and one hour before his death.
However, it is important that the will be prepared by a dayan or rabbi who is expert in the field of wills, since many details must be known in order to draft a deed of a lifetime gift that is halachically valid. It must be written in language stating “from today and after death,” or “from today and one hour before my death,” and it must use the language of a gift rather than inheritance, since, as noted, one may not stipulate contrary to what is written in the Torah and alter the heirs. It must also not be a matanah temirah, along with several other important details.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. It may therefore contain inaccuracies and should not be considered a definitive reference.
