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Shabbat Parashat Vayeira 5776

P'ninat Mishpat: Document to Overturn Laws of Inheritance

(based on Shut Chatam Sofer, Choshen Mishpat 142)

[The question was asked by a rabbi whom the Chatam Sofer addressed in glowing terms, but his name and identifying details are understandably left out due to the harsh nature of the response.]

Case: Reuven gave a house to his wife, Sarah, as a present and had the present registered with the government. Sarah then wrote a legal will that contradicted Torah law by giving her property to her relatives rather than to Reuven. Poskim (Rashba, see Rama, Choshen Mishpat 369:11) generally disregard such wills. However, this case may be different for three reasons: 1. Reuven showed his regard for the legal system by using it in giving Sarah the house (see Shach 73:39). 2. Sarah’s relatives already have control of the property since the government has already written it in their names. 3. One of the cases in which poskim agree that dina d’malchuta dina (the law of the land is binding) is where the government has an interest in the matter at hand, and since in our place the government takes a part of inheritance in taxes, they have a part and thus authority in it. Thus we should follow their laws including the will she wrote.   


Ruling: It appears to me that the esteemed querier is a litigant in this matter and therefore is unable to see that which is to his detriment and thus came up with ideas that have no value.

First we should point out that the fact that Reuven gave a present to Sarah does not mean that he removed inheritance rights to that property, unless he said so explicitly. Otherwise, it is hers in her lifetime and his through inheritance like any other property that she had. Therefore writing it over with legal documents is not a sign of relinquishing inheritance rights. The referenced Shach was only saying that such a legal document is also halachically considered a document, not that it obviates Torah law.

The Rivash (52) does say something along the lines that a society in which the Jewish community follows the law of the land, as opposed to Torah law, is bound by those rules. However in addition to the fact that the Tashbetz (I:61) attacked that position, that was talking about very specific circumstances including that it was in Mayorka (a Marrano-like community). Although the Rama (CM 248:1) accepts the Rivash, it is because he did not see the Tashbetz (see K’tzot Hachoshen 248:3), and anyway that case is a limited one.

The idea of the relatives’ control (muchzakut) is not significant because that applies only to cases where there is a halachic doubt, which is not the case here. In any case, control due to the fact that it is registered by governmental law is not muchzakut in a case where by Torah law it is determined to be owned by Reuven automatically with Sarah’s death.

The matter of the king’s involvement is also not relevant. It is true that with regard to the king’s rights, his rules are to be followed, but the adjudication is not about the king’s part. It is in regard to the part that stays with the inheritors that there is a dispute who should inherit, and in that regard, the king has no interest or power to overrule Torah law.


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