The Rabbinic Loophole That Allows Women To Inherit (Even Though The Torah Only Includes Men)
Inheritance can be complicated in any family. Emotions run high in the aftermath of grief, and there is sometimes a lot at stake. This dynamic used to be even more fraught in Jewish families, as the Torah technically does not allow for a woman to inherit from her parents. We spoke to Rabbi Shlomo Weissman, an Orthodox rabbi who is the Director of the Beth Din of America, to discuss a brilliant solution our sages came up with almost 2000 years ago to address this issue.
“The basic Torah law on inheritance says that when an individual passes away, his or her sons inherit their wealth…it’s not even divided equally. The firstborn son, the bachor, is entitled to a double-portion.” So where do daughters come in? “Under Torah law, daughters do not inherit, although there are expectations about the support that would be provided by the brothers…This order of inheritance is not…what most people would expect.” Rabbi Weissman explained that this clearly goes against our sense of fairness and justice, and as we see from books of Jewish law going back to 300-400 C.E., people have been bothered by this for a while.
So why did the Torah have this law in the first place? Rabbi Weissman said that the way wealth is passed from generation to generation changes over time. As history unfolds and time unfolds, sometimes you have monumental shifts in society. We went from an argricultural economy to a mercantile one. It is expected that the way people organize their economic affairs in one époque of time would be vastly different to how they do it centuries later.
Fortunately, the Torah is a living and breathing document that has some ability to adapt to changing times. “The Torah [is not] just a literal reading of the five books of Moses…Torah has a much broader meaning in the sense that it incorporates the Oral Law. That includes the dynamic features that Chazal have introduced at various times to deal with real-world problems. If [inheritance] introduces strife into families or leaves vulnerable people impoverished, the rabbis have to figure out and tinker with the system in a way that is consistent with halacha and Torah values, but that takes into account the realities of society.” Rabbi Weissman explained the rabbis must always be on their toes to balance the changing times with Torah law.
So what is the solution to the women’s inheritance issue? The shtar chatzi zachar (half a male contract) or the shtar kulah zachar whole male contract). This is the document is included in everyone’s will. The Rama, Rabbi Moshe Isserles, writing in the 1500’s referred to it as the dominant practice even in his time. “This is not a new problem and not a new solution.” The parents who want to bequeath their wealth to the next generation will write a secular will that complies with secular law and is enforceable in the courts. “Separate from that document, I’ll write a note of indebtedness that benefits one of my non-halachic heirs [such as owing far more than the estate is worth to my daughter]…in that document I will specify that the debt will be extinguished if my sons agree to follow my secular will.” They are incentivized to follow it, or else they stand to lose their entire gift. “It’s a neat and elegant solution that solves the whole problem in one fell swoop.”
While this is the accepted practice in every community, there is a Mishna could possibly argue with this practice. It says that that someone who transfers his assets to an outsider, [Bava Basra says] the rabbis are not pleased with that behavior.” Perhaps this means that we can’t just set aside the Torah’s plan and do what we feel like. Rav Moshe Feinstein wrote on this issue. He said that when disinheritance is done in a negative way, these allowances should not be used. If there’s favoritism that would not be in line with Torah thought.
Additionally, there are those who believe there should be some symbolic double portion given to the firstborn, just to show that we have some connection to the Torah source. So a small (extra) piece of one inheritance can go to the bachor. “Rabbi Mordechai Willig has suggested that perhaps bequeathing some of your extra seforim [to your bachor] is maybe one way of dealing with the symbolic issue.”
Across the board, rabbis view this as an acceptable mechanism. More than [that,] they say that you’re not doing any extra mitzvah by following the Torah’s approach [exclusively.]”
For anyone interested in learning more, the forms for notes of indebtedness are available on www.bethdin.org.
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