Jewish Law, which began in the Bible and underwent its major development in the Talmud, has sought to address all aspects of inheritance.

The Order of Inheritance.

In the Hebrew Bible, the proper order of inheritance is outlined in Numbers 27:8–11: If a man dies, and has no son, then you shall pass his inheritance on to his daughter. If he has no daughter, then you shall give his inheritance to his brothers. If he has no brothers, then you shall give his inheritance to his father’s brothers. And if his father has no brothers, then you shall give his inheritance to the nearest kinsman of his clan, and he shall possess it. It shall be for the Israelites a statute and ordinance, as the Lord commanded Moses.

The Mishnah gives us additional details (m. B. Bat. 8:2). The division of inheritance according to Jewish Law applies only in a case in which there is no will. When a person dies, his property will be divided among all his sons. If one of his sons had died before him, that son’s part is transferred to his sons, who are the grandchildren of the deceased. If the deceased has no sons, his property is distributed to his daughters, or their offspring. So if the deceased has any child, the inheritance will pass to him. If there are no living descendants at the time of death, his property will climb up the family ladder, going first to his father. If his father had died, then his father’s son, who is the brother of the deceased, receives the property. Priority is accorded to the brothers or their descendants, and after them the sisters and their descendants. The result is that there is not a single Jewish person who has no heirs.

In each family unit a female will not get a part together with a male, although there is a possibility that a female will share with a male, as would be the case with a granddaughter of the deceased by a predeceased son who shares with a grandson of the deceased who was a son of another predeceased son. The estate of a woman who is not married will be distributed in the same way as the division of a man’s estate. When a person dies, his estate automatically passes to his heirs. This particular fact has an impact on a number of issues in Jewish inheritance law, such as the inability to waive the rights of inheritance, or the remaining rights to inherit, even in a case in which the heir killed the testator.

Biological priority.

Jewish inheritance law is based on biological relations. Priority of inheritance is determined only with reference to the biological relationship of the individual to the deceased. So a man’s son will be the inheritor whether he was born to his legal wife or to an unmarried girl; even a mamzer (“bastard”)—a child born to a woman who is ineligible to be married—is entitled to inherit. In the Talmud (b. Yebam. 22a–b) it states that a mamzer’s relatives inherit his estate (derived from t. B. Bat. 7:1). This likely implies that the mamzer is also listed among heirs and testators. Thus Maimonides (Mishneh Torah, Laws of Inheritance, 1:7) states: “All relatives who were conceived through forbidden relations have equal inheritance rights to those who are conceived through permitted relations.” Therefore an adopted child does not receive an inheritance since he is considered as a legal son but not a biological one.

Recently, several articles on Jewish Law proposed giving the adopted child the assets of the deceased adoptive father. Three main sources were cited in this regard: (1) Nahmanides, in his commentary on the case of Serakh the daughter of Asher in Numbers 26:46, argues that although Serakh was the daughter of Asher’s wife but not his own, she grew up in Asher’s household and thus was nevertheless considered his daughter and inherited his property; (2) Rabbi Jacob Emden, in a responsum regarding vows, wrote: “If the man has no sons and he brought him up as a son, he will be his successor … Considered him like a real child” (Responsa She’elat Yavetz, I, 165); and (3) Chatam Sofer (Responsa, Even HaEzer 76) said: “When there are no sons … he is more comfortable when his wife’s beloved son will inherit his property than his brothers and other relatives.” Although there are many decisors who think that there is a difference between these cases and others and rule that an adopted son does not generally inherit the estate, some rabbinic judges have ruled to grant him the property because they relied on the text of the adoption agreement, which included an express provision about inheritance rights.

Other levels of priority.

The son of a Jew who was born to a Gentile woman is not regarded as related to his father and he does not inherit from his father, even if the child is converted. A father and son, too, who converted together, do not inherit from one other, because a converted person is like a newborn baby. Thus, if someone converts to Judaism and then marries and has a son, the son inherits from him. If this son is the eldest son (see below) he will receive a double portion. But if the father had children before he converted, the firstborn son who was born after the conversion will not receive a double portion. If a Jew and a Gentile woman have a son, who, as mentioned above, would not receive his estate, a son born later to that father and a Jewish woman will get the rights of the firstborn.

Inheritance passes through the father’s family. As stated above, when the deceased has no child his estate goes to his father. If his father had died, the inheritance passes to the sons of his father, who are the brothers of the deceased. But the mother of the deceased does not inherit from her children. The limitation to paternal relations led to another rule which says that brothers from a mother but not from the same father cannot inherit from each other.

An heir is entitled to inherit all the properties held by the deceased at the time of his death: real estate, movable property, bonds and money, and tangible assets and intangible assets. An heir is entitled to inherit property to which the deceased had no right when he died but would receive the rights only after his death. Any loans that the deceased undertook upon himself pass to his heirs (for other systems of inheritance law, see Cohen, 1966; Coulson, 1971; Driver and Milles, 1952–1955; Gulak, 1935; Paradise, 1981).

Rights of spouses.

When a married woman dies, her husband is entitled to inherit her property. He is the sole heir to all her assets. The husband inherits any assets in his wife’s possession when she died, but he does not inherit the properties or rights that she would receive after her death. He also does not inherit her obligations to others. The husband’s inheritance rights arise from the Ketubbah, the Jewish marriage contract, so a husband married to his wife according to civil law but not according to Jewish religious law has no rights under that system regarding his wife’s property. There is no direct inheritance relationship between a father-in-law and his son-in-law. If a person’s father-in-law passed away and his daughter inherited from him, the husband will acquire these assets only after the death of his wife, the daughter of his father-in-law. A married woman’s rights are protected by the Ketubbah, and therefore when her husband dies, she is entitled to all the rights granted to her by the Ketubbah, but she is not entitled to receive part of the estate as an heir.

Inheritance in the grave.

If a son died during his father’s lifetime, the grandson is in the place of his father to take the part of the legacy he deserved from the grandfather. This principle is called “inheritance in the grave” (b. B. Bat. 114b). The degree of the closeness is determined not by the effective recipient but by the proximate heir represented by that recipient. Thus the deceased’s daughter is superseded by the deceased’s granddaughter who is the deceased’s son’s daughter.

The rule of “inheritance in the grave” does not apply when its operation would transfer the assets from the mother’s or wife’s family to the father’s or husband’s family. Therefore no husband inherits from his wife when he is in the grave, so when the widow dies his property passes to her children or her father or family and not to her late husband’s heirs. Moreover, no husband inherits from his wife when she is in the grave—that is, when a man’s wife’s father died after her, the husband is not his successor. And no son inherits from his mother when she is in the grave, lest the property passes to the son’s brother from his father.

Division of inheritance.

When there are several heirs in the same degree of closeness they will divide the property equally. For example, if the deceased has five sons, each of them will receive one-fifth of the estate. The same is true of sharing among his daughters, in the absence of sons. Relatives who are at the same degree but more distant than sons and daughters will divide the estate in accordance with the rights of those whose share they inherit. Suppose that a man named Jacob had two sons: Reuben and Simon. Reuben had two sons and Simon had four. Reuben and Simon died before their father Jacob. After Jacob’s death his estate would be divided into two parts, one half for the two sons of Reuben and the other half for the four sons of Simon. If Reuben was the firstborn, two thirds of the estate would be passed to his two sons and the other third to Simon’s sons. However, if Jacob had a son Reuben and a daughter Dinah, and if Reuben had a daughter Rebecca and Reuben died before his father Jacob, then Rebecca would receive the inheritance from Jacob, superseding the daughter (her aunt) Dinah. All inheritance passes to a person through his father, therefore you never can get an inheritance if your father is still alive (Elon, 1975a; 1975b; Grunfeld, 1987; Herzog, 1965–1967).

Proof of entitlement.

A child who is known as the son of the deceased is entitled to inherit even if there are no witnesses to testify to this fact. As Maimonides wrote: “All the heirs may inherit on the basis of the prevailing presumption that they are the deceased’s relatives” (Mishneh Torah, Laws of Inheritance, 4:7). The testator may indicate the person and say he is my heir, even if the named heir was not regarded as such. No heir is entitled to receive the estate until he brings proof that the owner of the property died. No heir can relinquish his inheritance and abandon it, neither before the death of the testator nor after his death. An embryo later born after the death of testator is entitled to his share of the inheritance. One who murdered the person he is to inherit is still entitled to receive his share in the deceased’s assets, as in an apostate.

The Doubtful Heir in Laws of Inheritance.

An important issue in inheritance law is the question about a petition lodged by someone whose claim is not totally certain, and he is thereby defined as a “doubtful heir.” Legislation generally deals with two central types of doubts. One deals with doubts that arise due to the circumstances of the death, and the other with doubts concerning the nature of the claimant’s relationship to the deceased.

There are some rules governing this problem. First, if one of the claimants is an undoubted heir, and the other claimant is an uncertain heir, the undoubted heir has precedence. Second, an undoubted heir is one who would inherit no matter who died first while an uncertain heir is one who would have inherited only if one of them had died first. Those rules were formulated by Maimonides in accordance with Talmudic precedent: “If the house falls upon him and his mother, the mother’s estate is in the possession of the mother’s heirs, for they are the undoubtedly certain heirs, while the son’s heirs are uncertain, for if the son had died first, his paternal brothers have no share in the mother’s estate as we have explained” (Mishneh Torah, Laws of Inheritance, 5:6).

Therefore, when a mother and son die together and two brothers of the deceased claim the estate, one a maternal brother (i.e., a brother from the same mother) and the other a paternal brother, his maternal brother will get the entire estate for he is an undoubted, authentic heir. In this case, it makes no difference which one died first. The mother’s heirs have the right to inherit her estate. However, according to Jewish Law, the deceased son’s brothers from the same father will have no right to inherit, if the son had died before his mother, and consequently, is defined to be an uncertain heir, and will get nothing at all. For instance, Maimonides formulated this rule: “This is the rule of heirs: where there are two heirs where one is a definite heir and the other a doubtful heir, the doubtful is not entitled to anything at all. However, if both were doubtful heirs—perhaps this one is the heir or perhaps that one—they divide the estate equally” (Mishneh Torah, Laws of Inheritance, 5:1).

Other issues of uncertainty in inheritance relate to issues of the relationship between the claimant and the deceased. The classic case is when a woman marries before three months have elapsed since her divorce from her first husband or his death. The son that is born is considered uncertain, for it is unknown whether he is the son of the first husband or the child of the second. When the second husband dies and his sons claim their inheritance, this uncertain son will be rejected and his petition for his part in the heritance denied, for the known sons are authentic heirs while he is an uncertain heir. The same applies to the estate of the first husband: the doubtful heir, or any uncertain case or issue, does not negate nor go against an authentic heir. The number of such cases increases in the Talmud, especially in situations in which the two husbands of a woman were brothers, and her marriage to the second brother was through a levirate marriage.

One important issue related to this is when the uncertain heir contends with sons of the deceased second brother who had performed the levirate marriage. For instance, say Rebecca had married Reuben and they were childless. After Reuben’s death, his brother Simon carried out the levirate marriage before three months had passed since Reuben’s demise. Levi was born after seven months and it is unknown whether he is Reuben’s child (in which case he would be the heir to the entirety of Reuben’s estate) or is Simon’s child (born after seven months) and hence has no claim to Reuben’s estate while Simon is alive. Levi is thus defined to be an uncertain heir.

Consider another example. Suppose Simon has two sons, Gad and Dan, both of whom were born from a previous marriage, a later marriage, or even years after within the framework of a levirate marriage. The point is that they are certainly Simon’s sons. Then Simon dies and following his death, Simon’s (and Reuben’s) father Jacob, who is the grandfather of Levi, Gad, and Dan, passes away. Levi claims that he is Reuben’s son and through Reuben, Jacob’s first son, he should receive half of his grandfather Jacob’s estate. Gad and Dan claim that Levi is Simon’s son, and hence their brother, and should only get a third of his grandfather Jacob’s estate. According to the definitions mentioned above, all the claimants are defined to be undoubted, for it makes no difference whether Levi is Reuben’s son or Simon’s son—all the grandchildren deserve a portion in their grandfather’s estate. However, the actual division will be unique: Levi has admitted that he does not deserve half of the estate, and that half is automatically transferred to Dan and Gad. Dan and Gad admit that a third of the estate is not theirs but belongs to Levi, and this is transferred to Levi. The remaining sixth part is then divided between the two parties—that is, one grandson, Levi, gets half and the other two, Gad and Dan, share the other half.

Firstborn Rights in Inheritance.

In the Bible it is written:

"If a man has two wives, one of them loved, and the other disliked, and if both the loved and the disliked have borne him sons, the firstborn being the son of the one who is disliked, then on the day when he wills his possessions to his sons, he is not permitted to treat the son of the loved as the firstborn in preference to the son of the disliked, who is the firstborn. He must acknowledge as firstborn the son of the one who is disliked, giving him a double portion of all that he has; since he is the first issue of his virility, the right of the firstborn is his.(Deut 21:15–17)"

The midrash Sifrei on Deuteronomy draws several rules from these verses: (1) this is the actual practice not only in a case of two women, but also in the case of one woman and with more than two, whether all are beloved or hated; (2) no preference is accorded to girls in actual practice; (3) the firstborn son takes a double portion only of the assets that were held in his father’s possessions at his death, and not in assets that are about to accrue to his estate after his death; (4) the law of the firstborn is determined by the father’s child rather than the mother’s; and (5) the firstborn takes a double portion only in his father’s assets and not in his mother’s.

Rules regarding the firstborn.

These elements appear in Talmudic literature and were augmented by various rules regarding the firstborn. For instance, the Talmud discusses the question of who has the authority to determine whether a person is the firstborn. The main indication is by the father and his determination is always acceptable. Indeed, credence is given also to the mother and midwife (b. Qidd. 74a). The father can determine the firstborn son only when there is a doubt about it, but no parent can deny witnesses, nor retract his previous statement (b. B. Bat. 127b). However, preferred rights are only in a natural birth and in situations in which the child was born during his father’s lifetime.

As mentioned above, if a Gentile had a son and afterward he (the father) converted to Judaism, the next child will not have the firstborn’s rights. But if a Jew has a child with a Gentile woman, his next Jewish son does receive the firstborn’s inheritance (b. Bek. 47a). In addition, the identity of the firstborn child is determined by the date of birth and not of conception (b. B. Bat. 127a). Even if a son was born in prohibition of the incest laws, he is entitled to receive the rights of the firstborn (b. Yebam. 23a). Finally, the eldest takes a double portion of any assets that were held by his father when he died, but no part of assets that came after his father’s death (m. Bek. 8:9).

Limiting the rights of the firstborn.

The Bible further specifies that forefathers can give rights to a son other than the firstborn: Abraham gave all that he had to Isaac, who was the second son (Gen 25:5); Jacob gave to Joseph the rights of a firstborn by saying that Ephraim and Manasseh will get portions like those of Reuben and Simon (Gen 48:5). Some researchers speculate that it was in response to these unusual practices that Moses enacted the laws of the firstborn’s rights. This practice was not unique to the biblical world. In Nuzi and in many places in the ancient East in the second millennium B.C.E., permission was given to the father to change the order of succession without limitation, through his will (Brin, 1971). In the Mishnah it is emphasized that the prohibition against diminishing the firstborn’s share applies only to the use of the language’s terms of inheritance, but if the father uses terms for a gift, such as: “I give you,” it is legitimate. For instance, B. Bat. 8:5 specifies that “One who distributes his property verbally and gives much to one and less to another, or gives to his firstborn son a share of equal portion to that of his brothers—his words are valid, but if he said that these changes are derived from the law of inheritance his instructions are void.”

The status and rights of the firstborn.

Among the Cairo Genizah documents was found evidence of the firstborn son’s status and rights. For example, in a document from the beginning of the thirteenth century, a father says: “He is my firstborn son and according the Jewish law he has two parts.” Under the laws of inheritance in Islam, no privilege is accorded to the firstborn son. Shlomo D. Goitein (1979–1980) says that one of the crucial reasons for making a will was the difference between the Islamic law and Jewish Law on inheritance. Sometimes, to avoid a lawsuit in Islamic court against a son who received a larger portion, his father had to make a fictitious statement to preserve the son’s rights. For example, a person claims that a half of his house belongs to his eldest son and not to him. He gives the second half to his two other sons.

The principles presented above concerning the inheritance of the firstborn provided a very broad basis for further halakhic discussions. The prevalence of these issues in the responsa literature in all periods shows that in many cases the firstborn son’s status and rights were preserved when distributing the inheritance. For instance, Chief Rabbi Isaac Herzog (1965–1967), discussing matters of inheritance, analyzed, among other things, the issue of the elder son and discussed the question of whether to initiate enactments that would equalize the status of the firstborn and that of his brothers. His aim was to offer to the State of Israel’s legal authorities a new law of inheritance based on Jewish Law.

The Rights of Daughters in Inheritance.

According to Jewish Law, a daughter does not inherit from her father if he also has a son. Likewise, in the laws of the ancient Near East, the daughter did not inherit from her father, although for different reasons. First, in the ancient Near East, the estate was passed to those who filled the place of the deceased in religious duties. Since a daughter could not fulfill these religious obligations, she did not inherit. Second, a person who can fulfill the obligation of the deceased’s vendetta can be his heir, but once again since a daughter was not allowed to fulfill this obligation of redeeming blood, she was not eligible to inherit. Finally, the daughter was passed to the other heirs as property. In contrast, the Bible explains that the reason a daughter does not inherit from her father is the fear that the property would be passed from one tribe to another: “so that no inheritance of the Israelites shall be transferred from one tribe to another” (Num 36:7).

In postbiblical sources, there is a prominent tendency to award rights to daughters, as is found, for example, in the Elephantine documents. In the Mishnah there are enactments that reflect the desire to provide many rights to the daughter, while she is still at her father’s home and after she is married as well. The Talmud contains a proposal to give equal portions to a daughter and a son in their mother’s estate (b. B. Bat. 111a). The expansion of the tendency to give more rights to the daughter was expressed by explicit grants of property, as a gift or by a will. The Mishnah brings the case about the mother of Rokhel’s sons who bequeathed an important gift to her daughter (m. B. Bat. 9:7). And the Talmud presents the case of Abba Sura’a, who gave all his property as a dowry to his daughter (b. Ketub. 52b–53a). During the Geonic period we hear of many cases in which a father gave more property to his daughter than to his son. From the Cairo Genizah documents we learn that there was no change in these two trends in the post-Talmudic period. However, the right of the daughter to receive property is only found in cases where there were no sons.

This trend continued throughout the centuries and it produced various regulations that encourage fathers to give a dowry to their daughters. This was accomplished by means of a new enactment saying that a husband does not inherit the dowry of his wife after her death. Such regulations were made in Germany and Spain. In addition, Rabbi Herzog wanted to prepare a draft ruling that the daughter will get an equal share with the son.

Women’s Rights in Inheritance.

In ancient Near Eastern law, the widow lived in her husband’s house and used the assets, but she was not the owner of the property. In Assyria the husband used to write a will to his wife giving her a part of his assets. The property was given to her for a limited period, and she was granted the power to decide which son would receive the property in perpetuity after her death. A document from Sippar says: “Whoever among the sons of her husband will serve her and satisfy her desire, she will give him the property.” In a document from Elam, a husband voluntarily gives his wife properties that are now in his possession and properties that will come into his possession in the future.

According to biblical law, a widow is not listed among the heirs. As with daughters, widows are likely excluded in order to avoid transferring property outside the tribe. Further, there is no biblical instruction regarding the rights of the widow for housing and alimony. But in a few cases we learn about the custom that a widow who had children from her husband stays in the house and the cost of her maintenance is imposed on the children. As we read in Isaiah 51:18: “There is no one to guide her among all the children she has borne.” And when the women heard that Ruth has a son, they said: “He shall be to you a restorer of life and a nourisher of your old age” (Ruth 4:15).

In the Apocrypha we find that a woman can own property as well as inherit her husband’s property. In Babata’s marriage contract from the Cave of Letters, written early in the second century B.C.E., she receives the right to housing (Yadin and Greenfield, 1989). Although a woman does not inherit according to rabbinic law, and she is not entitled to receive part of the corpus of her husband’s assets, many rights were granted to her, as we read in the Mishnah: “You shall stay at my home” (m. Ketub. 4:12). According to this version, attributed to the custom of the people of Jerusalem and Galilee, the decision is in the widow’s hands: if she wants, she can remain at home, and if she wants, she can leave and receive the amount of money written in her Ketubbah.

According to the custom in Judea, this decision is the heirs’: “Until the heirs may consent to pay you your Ketubbah” (m. Ketub. 4:12). Tannaitic sources reveal that in addition to these important amendments of the written undertaking and liabilities toward the widow, husbands began to give their wives a share in their assets. They did it by writing a special deed of a gift, and in many cases they wrote it in their will. Gullak says that in Roman law if the husband left her wife assets by a will, she had the choice to take the new gift or to claim what her husband had undertaken in the past through their marriage contract. This is also found in the Tosefta (t. B. Bat. 7:13).

As noted, a woman’s rights, therefore, arise from her Ketubbah. With the death of her husband she is entitled to claim the full value of the money that her husband has undertaken. No heirs can use the estate assets before repaying the debt they owed to the widow. According to law the widow has to take an oath when she gets the money of her Ketubbah. The oath comes to ensure that she does not charge the Ketubbah price twice. Many sources indicate that the husband had released his wife from this oath by saying: “She has no oath and she is trusted like two witnesses.”

Husbands’ Rights in Inheritance.

In the Bible there is no explicit statement about the husband’s right to inherit from his wife. But the Mishnah does state that the husband inherits from his wife (m. B. Bat. 8:1). The husband is, in fact, the sole heir of the assets of his wife. There is a disagreement among the Talmud’s sages, which continues among the Geonim, about whether this right is derived from biblical law or if it is a rabbinic enactment.

Many sources from the Geonic period and from the Cairo Genizah documents teach us that even a married woman still may have a great deal of property of her own and she can bequeath it in her will to others. This fact seems to contradict the husband’s right to inherit all his wife’s assets, and it requires explanation. Studies show that women were making prenuptial agreements with their husbands, according to which the husband waives his rights to his wife’s assets. This waiver was valid during his wife’s lifetime and after her death. According to the Mishnah (m. Ketub. 9:1) and as ruled by Maimonides, the basis for such an agreement is as follows: “If he makes a provision that he will not inherit [his wife’s] property, the provision is binding” (Mishneh Torah, Laws of Matrimony, 23:5). Based on these individual agreements, general regulations were designed to reduce the inheritance of the husband. Such enactments were used in Germany and Spain. While they differed in scope, these enactments both sought to reduce the husband’s right to his wife’s inheritance (Asaf, 1926).

Rights of Inheritance: Atypical Cases.

In addition to the circumstances discussed above, there are also important questions concerning rights of inheritance in more atypical cases.

Embryo.

The law of the embryo’s inheritance arises from the Talmudic discussion about a proselyte who died without children (b. B. Bat. 142a). Maimonides refers to the embryo inheritance law in connection with the firstborn child and rules that he has no more rights than his brothers. Also the embryo does not reduce the rights of his eldest brother (Mishneh Torah, Laws of Inheritance, 2:2, 2:5). In the Talmud there is also a discussion about the possibility of arranging a gift to an embryo. The conclusion is that one can do it only to his own embryo (Bazak, 1996).

This issue has interesting implications regarding the mother’s inheritance, in the event that the embryo died in the womb. If we assume that the embryo’s mother was dead before him, he is entitled to inherit from her mother and transfer the assets to his brother. But if the assumption is that the embryo died before his mother, the assets would not be transferred to his father’s family, but would remain in the hands of the woman’s father or her family (Mishneh Torah, Law of Inheritance, 1:13).

Fertilization and surrogacy.

The tendency of most Halakhic authorities in our generation is to rule that a child who was born by artificial insemination is entitled to inherit from his father, defined as the source of the semen. This conclusion is based on the Talmudic discussion about Ben Sira (b. Ḥag. 14b–15a; Judah Rosanes, Mishneh Lemelekh at Laws of Matrimony, 15:4; Responsa Beit Shemuel Even HaEzer 13:1). In this regard it makes no difference whether it is the husband’s sperm that was injected into the womb, or if the semen is from another person. From the responsa literature we can learn that even when fertilization was outside the womb, it does not change the determination that the newborn child is treated as the child of the semen donor and would inherit him.

Halakhic authorities in recent generations are divided about the question of who is the mother of one born of a surrogate motherhood procedure. This is a case in which two women were involved in the process of procreation. One donated an egg while the fertilized egg was implanted in the uterus of another woman who served as a surrogate for the pregnancy and birth. In this situation, most authorities agree that there is only one mother: either the donor or the surrogate. It appears that most opinions tend to favor the surrogate. The consequences affect many different issues, including filial piety toward a mother and the prohibition against incest. Regarding inheritance, since there is no clear decision on the question of motherhood, someone born of a surrogacy process cannot receive any inheritance at all, not from the donor and not from the surrogate on their deaths.

Modern science speaks of the possibility of cloning a person, meaning the creation of a human being without the combining of two reproductive cells. The offspring would be the genetic twin of the donor cell. In the cloning process, a normal cell is duplicated and inserted into an ovum whose nucleus has been removed, with the result that the ovum has no influence over the development of the child. Halakhic authorities are of the opinion that the donor of the cell is considered the “father.” Controversy remains, however, regarding who is the mother (Aviner et al., 2004).

Apostate.

Inheritance law dealing with apostates is based on Talmudic issues (b. Qidd. 17b–18a), but most of its development took place during the period of the Geonim. Rabbi Natronai specifically addressed the question of the apostate’s inheritance and declared: “So I was shown from heaven that an apostate does not inherit his father, because by conversion he left the sanctity of the Israeli nation and also the sanctity of his father (and family).”

However, there are Geonim who disagree with this statement. Maimonides’s ruling is that the converted son is listed among the heirs, although a rabbinical court may deprive him of his inheritance: “Although a Jew converts out of the faith, he retains the right to inherit the estates of his Jewish relatives as before. If, however, the court sees fit to make him forfeit his money and penalize him by preventing him from receiving the inheritance so as not to strengthen his hand, they have that power. If he has children among the Jewish people, the inheritance due their father, the apostate, should be given to them” (Mishneh Torah, Laws of Inheritance, 6:12).

Murder of the testator.

Legal systems have changed their attitude with respect to the murder of the testator. Ancient Roman law negated the inheritance right of the murderer. But we have to remember that the general tendency of ancient law was to confiscate the property of a murderer. Afterward the legal systems ceased binding the criminal matter with the monetary one, and ordered that one who kills his testator does not lose his right to inherit. Over the past century most legal systems tend to deny the killer the right of inheritance. According to the Israeli law of inheritance anyone convicted of intentionally causing the death of the testator or attempting to cause his death would lose his right to inherit from him.

An interesting case is found in the Book of Samuel. A woman from Tekoa came to the king and told him that her son killed his brother and now her relatives want to annihilate the killer (2 Sam 14:5–7). The medieval commentator David Kimhi explains that their intention is to win the succession that the killer inherited. Other decisors followed Kimhi by saying that an heir who killed the testator is still entitled to receive the inheritance. Among the evidence presented for this interpretation is a Talmudic passage about a little orphan who was entrusted to his father’s brothers and killed by them to gain his inheritance (b. Ketub. 102b). Although not all the evidence is conclusive, it seems that the opinion of most of the scholars of our generation is that the murderer is entitled to inherit. However, there is support to the proposal that the rabbinic court can impose a fine on the killer and negate the right of inheritance.

Transferring an Estate from Children.

Sages in the Talmud interpret Deuteronomy 21:16 in the following way: “The Bible gave authority to the father to transmit [his estate] to whomsoever he pleases” (b. B. Bat. 130a). The question then arises whether a person may transfer his property to others and leave nothing to his sons. The Mishnah says that the sages are not pleased by a father who dispossessed his sons from his property, but his actions still have full effect (m. B. Bat. 8:5). The Talmud treats with severity a person who dispossesses his sons. As a result, a man who wills his assets must leave his heirs part of the estate. From the Geonic period we find that Saadia Gaon’s approach determines that one has a legal duty to leave in his last will something to the usual heirs if he wants his will to be valid. In many Cairo Genizah documents we find support for this method but the ruling was that even if the father left nothing to his heirs, his will is valid. However, it should be noted that Maimonides varied from the Mishnah’s wording and wrote: “and left nothing to his heirs” instead of “to his sons” (Mishneh Torah, Laws of Inheritance, 6:11). This means that even if the heirs are daughters, the father must leave them some legacy.

Many questions have arisen in recent times regarding cases in which the father wants to give a large share to one son who devotes himself to learning by reducing the portion of another son who works and has a higher economic status. Other fathers seek to keep inherited assets from a son who is a gambler or an addict or the like. Another issue for discussion today is what would be considered an adequate legacy to avoid being a testator with whom the sages would be displeased. Apparently the answer varies on a case-by-case basis, relative to the total value of the inheritance.

Waiving of Inheritance Rights.

In the Mishnah, we learn that it is valid for a husband to waive his wife’s inheritance rights (m. Ketub. 9:1). The Talmud says that this act of renunciation should take place between the Kiddushin and the wedding, relying on the words of Rav Kahana who said that an inheritance estate that comes from another (distant) relative can be renounced (b. Ketub. 83a; Maimonides, Mishneh Torah, Laws of Matrimony, 23:5–6). Talmudic commentators explain that the possibility of waiving the rights of succession exists, therefore, only when the inheritance comes from a distant relative and depends on some act performed by the heir, like the marriage act that entitled the husband to his wife’s inheritance.

However, there are a number of other cases still offering the possibility of waiving the rights of inheritance. The firstborn son who is entitled to a double portion in his father’s estate (see above) may waive the additional part, sharing the estate equally with his brothers (b. B. Bat. 124a). The time for the renunciation of rights is after the death of the father, but some sages say that it is possible also during the lifetime of the father. The levitate husband is also entitled to receive in his father’s assets the additional share of his late brother, after he performed the levirate marriage. He may renounce this part. The renunciation should occur before performing the levirate marriage.

Inheritance through a Will.

Today we witness a trend toward mutual wills between spouses. The will is held in one document and typically provides that the first spouse to die leaves all his or her property to the surviving spouse. Sometimes, especially when it comes to second marriages, both the husband and the wife want to determine that after the death of the present spouse, the entire inheritance should be returned to the family of the first deceased spouse and divided according to the laws of inheritance. For example, suppose that Rebecca and Reuben are married for their second time. Rebecca has a daughter named Leah from a previous marriage and Reuben has a son named Levi from a previous marriage. Rebecca and Reuben write their mutual will in the manner mentioned above. Reuben in his will stipulates that if he dies before Rebecca all his assets will pass to her, but on her death the assets will return to his son Levi and similarly for Rebecca’s will.

In the Talmud there is a complex discussion, continued in the literature of rabbinical decisors, regarding the status of the property remaining with Rebecca, and whether it must eventually be transferred to Levi. The conclusion is that her obligation to transfer the assets to Levi is only a moral obligation. If Rebecca does not want to do so and she sold the property to a stranger, the sale is valid. Her actions in this regard are subject to two restrictions: she cannot give her assets to her daughter (Leah in our example), and she cannot make a will on these properties (Maimonides, Mishneh Torah, Laws of Original Acquisitions and Gifts, 12:8–9). But in principle it is possible to keep the original inheritance law even after making a will.

Related Issues Surrounding Inheritance.

A variety of legal issues arise that are either directly or indirectly related to inheritance.

Burial affairs.

Burial expenses are taken out of the assets of the estate. During the Tanaitic period it was customary among Jews to increase spending for burial, until the sages saw a need to establish regulations designed to reduce these expenses (t. Nid. 9:17). Josephus tells of Herod’s funeral: his bier was all gold, inlaid with objects, and the platform was scarlet (J.W. I, 33, 9). Burial with a shroud is an important religious commandment. When carrying the bier, or near the burial, wailing women and the sound of flutes were heard. It seems that some people spend a great deal of money fulfilling the commandments concerning burial (m. Ketub. 4:4).

From the Cairo Genizah documents we learn that the Jews gave special attention to burial. In many wills the burial expenses are mentioned: “Then he turned to his friend Rabbi Nathan and said, ‘I want nice shrouds’ etc.” One of the husband’s obligations toward his wife is about burial: “and he has to supply her food … and her burial expenses” (m. Ketub. 4:4). Mordechai A. Friedman (1980–1981) published a Ketubbah with the formula: “If you die before me, I will provide your shrouds and burial and I will inherit your property” (Vol. 1, pp. 445–446). From this we learn three things: (1) this husband’s duty exists only if the wife dies before him. If the husband dies before the wife, there is no duty imposed on the heirs; (2) the obligation of the husband exists only if the husband inherits from his wife; and (3) anyone who inherits from this woman is to provide for her burial. This conclusion may explain the fact that women’s wills include money designated for burial costs. The reason probably is that the possibility that she is allowed to make a will derived from the fact that her husband waived his right to inherit her and is therefore not obligated to pay the burial expenses.

Guardianship.

In many cases the heirs are young orphans and we have to appoint a guardian to take care of their affairs until they grow up. In many wills the testator appoints a person to be responsible for his property. But when he did not do so the rabbinical court, which is called “the father of orphans,” is obligated to do it. The scope of the administrator’s appointment varied from case to case: a general appointment or an appointment to perform certain actions. Usually he has to submit an account of his actions at the end of the appointment, but sometimes the court exempted him from this, often because he refused to accept the appointment without this exemption.

Debt and deposits.

As was mentioned above, before the division of the estate the heirs must pay the debts of the deceased and return deposits that had been deposited with him. Sometimes the testator arranged his debts and deposits. The Gaon Rabbi Shmuel Ben Hofni wrote: “[The testator] has to study all his duties towards God Almighty as vows and dedications and any duty toward people, especially in the absence of proof, such as loans and liability and deposits and others, and if it possible to return them in his lifetime or to command his heirs to do so.” If the deceased had no debts or deposits, he made sure to mention it. For example: “Nobody owes me anything nor do I [owe anything to anyone].” Witnesses who wrote a description of their last meeting with the deceased used to say: “And we asked him what obligations he has toward people and what obligations people have toward him.”

Charities and consecrations.

The sages spoke often in praise of charity, and Rav Assi said: “Charity is equivalent to all the commandments in Bible” (b. B. Bat. 9a). It seems that this attitude caused people to give a great deal of money to charity, to the point that some were left with little to live on. This is the background for the regulation that was established in Usha not to spend more than one-fifth of one’s property on charity (b. Ketub. 50a), but this limitation does not exist when it comes before death (b. Ketub. 67b). However, there is a discussion among the Geonim if the rabbinical court can force the heirs to accede to their father’s will regarding charity. Sometimes the testator gave the money for poor people, but in most wills it was designated to the synagogue. The question is whether one may give all his possessions for charity purposes. Two halakhic approaches are attested: one with the limitation of no more than one-third of one’s assets and the other no more than half (Rivlin, 1999).

[See also CHILDREN; DEEDS OF SALE AND TRANSFER; DIVORCE; ELEPHANTINE LEGAL TEXTS; GEONIC LAW; HALAKHA/RABBINIC LAW; MARRIAGE; MISHNAH; NUZI TEXTS; PROPERTY; REPRODUCTION; and TALMUD.]

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Yosef Rivlin