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Shabbat Parashat Tetzaveh 5775

P'ninat Mishpat: Agreeing to Not Receive Inheritance from Ones Children

(based on Shut Rabbi Akiva Eiger I:138)

[This case is not a din Torah of two sides arguing, but of people planning to arrange a system to obviate a halachic situation, which for apparently emotional reasons, they wanted to avoid.]

 

Case: A couple got divorced after having children (Reuven, Shimon). The ex-wife (Sarah) [who is apparently a woman of means] has property, which if she dies, would be inherited by her children. Subsequently, if Reuven or Shimon die before their father (Yaakov), the father/ex-husband would gain control over his ex-wife’s property for himself. Alternatively, if Reuven or Shimon die without children, Yaakov or their half-brothers from Yaakov and a different mother (Yosef, Binyamin) would inherit Sarah’s property that her sons had inherited from her. The husband/father has agreed to take steps to prevent this, but what can be done?

 

Ruling: It is not possible for Yaakov to relinquish inheritance rights, as this does not work for Torah-level inheritance, which occurs automatically. 

The only system that will work is, as is done in a shtar chatzi zachar (a device which makes brothers share inheritance with sisters), for Yaakov to obligate himself in a large sum of money to someone from Sarah’s side of the family. This is to be done with a stipulation that the loan is payable when Yaakov or his family (other than from Sarah’s children) receives inheritance of Sarah’s property. That would cause Yaakov and his family to have to forgo inheritance from Reuven or Shimon in order to avoid paying the large debt.

Does this system work if Yaakov dies and then Reuven dies? Then Yaakov’s brother (Eisav) would inherit Reuven, and even though Yaakov would turn out to be a debtor, Eisav does not have to pay Yaakov’s debts from the property he inherits from Yaakov. This is apparent from the halacha (Shulchan Aruch, Choshen Mishpat 104:16, as explained by the Shach (104:21), that a grandson who inherits from his grandfather, when the middle generation died, does not have to use the inheritance to pay the middle generation’s debt. This is because the grandson is deemed to be a direct inheritor of the grandfather. So too here, Eisav will inherit Reuven directly, without paying the large debt Yaakov accepted to prevent that situation.

It is true that the Baal Haterumot (48:3) says that only a grandson can claim to inherit while skipping the linking generation and his debts, but when it goes through brothers, the inheriting brother has to use the property to pay the deceased’s debt. Even according to this opinion that Eisav would have to pay, if Yaakov remarried and Yosef and Binyamin were born to him, they can inherit their half brother Reuven directly and not pay Yaakov’s debt. (This is if we hold like the Beit Yosef (CM 253) that brothers are natural inheritors of each other, without going through their joint father as an intermediary (mishmush). The Darchei Moshe does say that brothers inherit only through mishmush (ad loc.). However, we have never heard the practice of brothers’ inheritance being subject to paying their joint father’s debts. Therefore, the suggestion I have made only solves some of the problems, but does not preclude the possibility of Sarah’s property going to Yaakov’s family in stages.

 

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