Leaving an inheritance for children is found throughout the Bible and in a variety of places in Jewish tradition. All of the patriarchs receive an inheritance from their fathers, and the Talmud devises a series of judicial structures to support the transfer of inheritance. Personally, I advise all parents I work with to meet with an attorney to prepare proper documentation and to ensure that whatever they are blessed to have is passed to those they love or the organizations they care about. Perhaps obligated may be a strong word from a halahic framework, but certainly we would agree that under normal circumstances it is proper and right to leave your estate to family, friends, and sometimes to organizations you support.
For me, I believe that our obligation to leave an inheritance is not about gifting financial worth to our children or grandchildren. Rather, it is about gifting them with memory. Each morning when I open my office door, I am blessed to see a painting my grandfather (z”l) left for me when he died. I use my great-grandmother’s (z”l) china and matzah cover for Pesah each year. And my partner’s wedding ring was made from a diamond my great-grandfather (z”l) left for that express purpose. Those things are not just monetary or decorative in nature. They are core pieces of my Jewish experience and support me in the life I lead. They encourage memories and help me tell the story of their lives to my own children, who were not blessed to know them.
Memory is the core principle of our tradition. We act as Jews “zeher letziyat mitzrayim” for the remembrance of the Exodus from Egypt. The items we leave to our children after we die should help support that same kind of memory. If we do that, the value of what we leave matters not.
This Begs another question. Is there such a thing as a WILL in Jewish Law?
1. Most WILL's from great rabbis were ethical wills, a mini-book of ethics. EG Iggeret haRamban [Nachmanides] and Iggeret haGRA [Vilna Gaon] come to mind.
2. The probating of a Jewish estate is covered in the Torah [Parshat Pinchas] and throughtout the Talmud [EG Bava Batra and K'tubbot]. The presumption is no will, just debts and obligations, EG the K'tubah, etc.
3. The Talmud has a concept where a man who is dying [sh'chiv meira] may "WILL" property. In order to afford him peace of mind, his verbal orders are given the force of a a written contract. These come close to a WILL, but I think they're a bit different.
4. Just like with "Selling Hameitz" there are circumventions. A WILL can override the Halachic divisions if/when it can be so construed to take effect before passing on. Then it is not quite a will, but a form of gift-giving. As such, a parent can give his/her property as he/she sees fit - because the parent is technically gifting prior to passing.
5. I'm not familiar with the literature on this point, but the common wisdom is to never cut the children out, unless there are extreme or extraordinary circumstances. Perhaps in the case of a criminal, a psycopath or a self-destructive type. Most children should NOT be left out of the WILL.
6. How to make best use of what the family gets is tough to outline here. IMHO Education - especially Jewish Education - should come first. Thus, tuition for the grandchildren's Jewish/Hebrew education would typically be my top priority. Of course, each case must be tailored as necessary.
7. The Talmud gives a guideline of alloting 10-20% towards charity. This makes sense, and can be implemented as scholarships, etc. For example, an estate whose net worth is $1 million might see $100k towards various charities, $100k for scholarships for the grandchildren, and $800k divided amongst the children and other worthy family members as appropriate.
At my first read of this question, my first choice is to look in the Rabbinical Assembly’s new guide for Jewish living and halacha, The Observant Life: The Wisdom of Conservative Judaism for Contemporary Jews, edited by Rabbi Martin Cohen. There from pages 590 to 605, I find a chapter on “Bequests and Inheritance.” I would like to begin with its conclusion, discussing ethical wills. Based on that section, I would say that a parent is obliged to leave their children a record of their values, a legacy of instruction and teaching. Whether audio-visual, written, or any other modern form, sharing teachings and ideas, the “kernels of wisdom and experience” gained over a lifetime should be shared with one’s descendants (p.603). It is a good idea to work on this task every few years, to start while one is younger and to reconsider, expand, edit, as one ages. Looking at our Torah, we see our ancestors received not only financial inheritance but “blessings” from their parents. There is even a midrash that says our central prayer, Shema, is Jacob’s children telling him that they will not forget the Gd of Israel, nor their responsibilities as Israelites and Jews.
Regarding the question at hand, while we have records of ethical wills, the Jewish tradition assumes that a person loses ownership of property when he/she is deceased. At the same time “it is a mitzvah to honor the wishes of the dead” (p. 596). From the standpoint of traditional Jewish law (discussing a married man with children), when a man dies, his estate’s debts are settled, including the Ketubah to his wife, followed by a double portion of the remaining estate to the firstborn son, then the estate is split among other sons. Daughters did not inherit directly, unless there were no sons. (That we learn from the story of Tzelofchad’s daughters in Numbers 27:1-11). At the same time, it is perfectly acceptable for someone to give gift’s while he/she is living, which has been the traditional way of ensuring (in the modern context) that daughters get their fair share. Additionally, one could structure his/her estate in such a way to ensure fair distribution of assets among all children, by creating debts to the children that would be repaid at death, allowing all children/inheritors to receive their share, before the property is otherwise divided. As such, the firstborn could receive a double-portion of what remained, but since the others had already received more, they would end with equal shares. See discussion of firstborn son on p. 598-599 and the subsequent discussion of gender inheritance.
According to traditional Jewish law, yes, an individual is obliged to leave their children an inheritance. Yet, this is a qualified yes. A person could give away all/most of his/her property before he/she died. In this way, the children would inherit whatever little or nothing was left from the estate. Ask yourself though, is this a correct or ethical action? Many wealthy individuals, such as Bill Gates and Warren Buffet have pledged to give away the vast majority of their fortunes to charities, not to merely pass along their wealth to their children. In this way, they demonstrate their commitment to the world, to their values, and teach a great lesson to their children. If you are discussing this situation, I would support your decision. If you are trying to spite your children, I would be far less comfortable with the situation!
On my second read of this question, I wondered about its context. Why would someone want to disinherit his/her children? Is there a split/feud that could possibly resolved? Again, speaking to a rabbi to discuss the situation in more detail would be ideal. I wish you blessing in your search for answers and pray that you will find wholeness with your family and with Gd.
I’m not ordinarily the suspicious type, but somehow I suspect that there’s more to your question than simple intellectual curiosity. I’ll get to that below. But first, let me summarize the not-so-simple stance of Jewish law (halakhah).
The Torah prescribes a clear line of inheritance (Numbers 27:8-11; Deuteronomy 21:17): one’s property is inherited by one’s sons, with the father’s first-born son receiving a portion twice as large as that of any of his brothers. A daughter inherits if and only if there are no living sons and no living descendants from those sons. These rules, derived directly from Scripture, are considered iron-clad; if one writes a will that changes or departs from the Torah’s order of inheritance, that will is of no force under Jewish law. On the other hand, one is permitted to make gifts of money and property to anybody prior to one’s death. In theory, then, those who do not wish to leave property to their children can simply arrange to give all or most of their estate to others. As long as their gift takes force before they die, it is considered legally valid …
… but that doesn’t necessarily make it morally proper. The Rabbis (M. Bava Batra 8:5; B. Bava Batra 133b; B. Ketubot 53a) declare that though one is empowered to give away his property and leave nothing to his legal heirs, “the Sages are displeased with his act.” This is true even though his sons “do not behave in a proper manner.” The stated reason for the Rabbis’ disapproval is that, even if a son turns out to be a no-goodnik, one can never be sure that the son will not beget any fine and upstanding descendants who would be denied their rightful inheritance thereby. Thus, it is best to stick with the Torah’s order of inheritance. That, at any rate, is the rule as codified by the major authorities (Maimonides, Mishneh Torah, Hilkht Nachalot 6:11; Shulchan Arukh Choshen Mishpat 282). There the matter would stand, except for the fact that some contemporary Orthodox authorities have derived exceptions to this rule. For example, when one son is a Torah scholar and the other is non-observant, these authorities rule that it is proper for the father to transfer all his wealth to the Torah scholar.
What can we learn from all of this? For one thing, it isn’t too difficult to find fault with the rules as I’ve described them. Many of us, myself included, find the exclusion of daughters from inheritance to be morally indefensible in this day and age. But one lesson that does come forth is that the Jewish law of inheritance struggles over the question you have posed. On the one hand, it empowers a parent to cut children out of their legal inheritance; on the other hand, it strongly disapproves of parents who do this; and on the other hand (and yes, in Jewish discussions, we sometimes have three hands!), it recognizes that there may be exceptions to this rule, cases in which it would be a bad idea to bequeath a significant amount of money to a child who for some reason is not worthy of it. The halakhah struggles back and forth over this question because, well, it’s a difficult question. Human relations are complex things, and sometimes that complexity does not permit of a simple answer.
Now back to my suspicion: it sounds as though you are struggling over this issue in your life. Perhaps you are wondering whether one or more of your children are deserving of a significant portion of their legal inheritance. As you can tell from the above, I have no easy answers for you. What I can say is that, as a general principle, Jewish tradition discourages us from disinheriting our children, even when we think that such an action is for their own good. Cutting them out, even for the best reasons, is the sort of punitive action that is likely to bear poisonous fruit for years, maybe generations to come. It is far better to work out our disagreements with our children before we die, if that is at all possible. If you can’t see your way to allowing your child(ren) to inherit, one possible course is to set up a trust fund with strict rules that permit the disbursement of funds for purposes of which you approve and under conditions – hopefully reasonable ones – that you set. Our tradition would permit that course of action, if only as a last resort.
For a more complete discussion, see Reform Responsa for the 21st Century (New York: CCar Press, 2010), volume 2, pp. 359-364.
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