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Shabbat Parashat Chayei Sarah 5776

Ask the Rabbi: Inheritance Without Maaser Kesafim

Rav Daniel Mann

Question: My parents are planning their will and want to divide the estate evenly between my brother and me. They are bothered by my practice of giving ma’aser kesafim, as they want their children, not charity (to whom they will also leave money), to receive their inheritance. If I cannot figure out a way to avoid ma’aser, they will give the entire estate to my brother. Is it there a permitted way for me to obviate the obligation of ma’aser, or should I stand on principle even in the face of losing a lot of money?

: We praise not only your willingness to forgo inheritance if halachically required but also for not trying to trick your parents in this regard.

There are times when parents’ gifts are ma’aser exempt. Rav M. Feinstein (Igrot Moshe, Yoreh Deah 112) says that when parents promise money to a child for his basic needs, the parents have the right to have the son not give ma’aser on it, as it, in effect, forces the parents to give more to cover those needs. Teshuvot V’hanhagot (III:282) says that if that son gives ma’aser against his parents’ conditions, it is considered stealing.

However, this logic does not apply in your case. Your parents are not giving you money for a specific purpose that will not be met if you give ma’aser but object to your use of what will be your money after their death (not before 120 years). This is like a parent who commands his child to not fulfill a mitzva, which is an illegitimate request (Bava Metzia 32a).

If your parents are serious about withholding all your inheritance over this matter and it is a large amount of money, then you can be exempted from ma’aser, as the Rama (Orach Chayim 656:1) rules that one does not have to spend an exorbitant amount of money on a mitzva. Of course, tzedaka (ma’aser falls under its rubric – see Rambam, Matanot Aniyim 7:5) is expensive by its nature, but here we are talking about a large loss beyond natural tzedaka costs.

In general, there are three opinions as to whether the practice of ma’aser kesafim is a mitzva from the Torah (Tosafot, Taanit 9a), a Rabbinic obligation (Maharil 54), or a proper practice to accept upon oneself (Shut Chatam Sofer, YD 231). We believe that the third opinion is the strongest and thus if you use the above exemption, it is good to do hatarat nedarim on the practice of ma’aser kesafim in regard to this inheritance.

However, it is better (for your sake and probably for your parents’) to obviate the mitzva rather than refrain due to loss from a mitzva in which you are fundamentally obligated. Therefore, try to take your parents up on their offer to leave you an inheritance in a way that you are exempt from ma’aser. According to most opinions, one who receives objects or property is not required to give ma’aser based on its value unless and until he sells them (see Tzedaka U’mishpat 5:(25); Hilchot Ma’aser Kesafim (Bronstein) 3:6). According to many opinions, money received that is bindingly earmarked for a certain expense is exempt (ibid. 11). Thus, their will can create a trust fund for certain purposes (e.g., children’s weddings, education) or you can receive real estate, as opposed to cash.

There are strong indications that ma’aser kesafim is not a separate mitzva but a set of rules within tzedaka. Your parents are presumably not against your giving tzedaka but annoyed by the level and the automatic nature of giving ma’aser. However you solve the issue with your parents, it does not mean that in the long term, you will not be a less generous person. If inheritance and hopefully other sources and merits enhance your ability to give, you at some point might end up giving a similar amount of tzedaka as if you followed you the rules of ma’aser kesafim formalistically on the inheritance. (One may give more than 10% when he wants or not rely on leniencies that he used to.) We do not condone calculating the amount to add to make up for following your parents’ conditions, as this would be dishonest to them. But if it happens through natural dynamics over time, this is fine.

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