Shabbat Parashat Mishpatim 5775

P'ninat Mishpat: Putting Pressure on Male Inheritors

Case: A man died, leaving behind two sons (including a firstborn) and three daughters. According to the laws of the government, the sons and daughters all inherit their father in equal parts unless the daughters sign a chesia (some sort of waiver of rights or acknowledgement). This is as opposed to the Torah law that the sons inherit, with the firstborn receiving a double portion. The daughters are willing to sign the chesia only if they get a full share of the inheritance. One of the daughters also claims that the firstborn told her husband that he does not want to receive one bit more than his sister, [but has since changed his mind, while not denying that statement].

Ruling: We will start by analyzing the firstborn’s mechila (relinquishing of rights). Regarding the firstborn’s regular portion, mechila does not work. This is because inheritance is an automatic right that comes to the inheritor based on Torah law. This right, which can take effect at any moment upon the “bequeathing party’s” death, is not subject to mechila (see Mishneh Lamelech, Ishut, ch. 23). [One would have to void his ownership or give it away to another after receiving the inheritance.]

The firstborn’s extra portion may be different in regard to mechila. Since the Torah views it as a “present” to the firstborn, he is able to remove himself from receiving it (Hagahot Oshri to Bava Batra 8:15). Although the Hagahot Oshri cites a Yerushalmi as saying that the firstborn’s mechila is ineffective, the K’tzot Hachoshen (278:13) neither could identify such a Yerushalmi nor did he understand what its reasoning would be. My father [Rav Aryeh Lebush Nathanson] claims that there is a misprint in the Hagahot Oshri and that he just said that yerusha (inheritance), i.e., a regular portion, is not subject to mechila. The conclusion is that mechila is effective for the firstborn’s extra portion, although in any specific case, it will depend on the language that the person uses.

 Regarding the need to sign a chesia, it does not appear that the daughters are required to do that, even in regard to money that they do not deserve based on Torah law. This is what follows from the Pnei Moshe, and I have written on the matter at length in several responsa. I demonstrated that this approach is supported by Tosafot (Bava Kama 40b), who says that one who should pay for his ox’s damages from the ox itself can force the damaged party to relinquish some of his rights through a compromise based on the threat that he will hide his ox and thereby prevent payment. It is true that the Terumat Hadeshen (306) rejects this approach as the Shulchan Aruch (Choshen Mishpat 12:6) apparently does. However, it seems that in this case, the Shulchan Aruch could agree because the daughters are not taking steps to force the brothers to make a settlement, just that they are refusing to take positive action on their brothers’ behalf.  

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