Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity.
Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, email@example.com
Parashat Pinchas 5759/1999
Womens' Rights in Parashat Pinchas
The Daughter's Right to Inherit:
Dowry as Inheritance
Prof. Joseph Rivlin
Dept. of Talmud
"Further, speak to the Israelite people as follows: 'If a man dies without leaving a son, you shall transfer his property to his daughter'" (Num. 27:8). According to the laws of inheritance presented in this week's reading, daughters do not inherit. The daughters of Zelophehad, who inherited their father's land in accordance with the instruction cited above, were commanded to marry their cousins: "This is what the Lord has commanded concerning the daughters of Zelophehad: They may marry anyone they wish, provided they marry into a clan of their father's tribe. No inheritance of the Israelites may pass over from one tribe to another" (Num. 36:6, 9).
According to the Sages the instruction to marry members of the same tribe only applied to that generation (Bava Batra 121a). Once the restriction on inheritance passing from one tribe to another had been removed, apparently after the settlement period, a clear trend towards enacting legislation for the daughter's welfare emerged among the Sages.
One important regulation in this regard was the "taqqana of male sons" (benin dikhrin), whose purpose, according to the Jerusalem Talmud, was "to make a person inclined to give generously to his daughter" (Ketubbot 4.12, 29a), or as the Babylonian Talmud put it, "So that a person wish to write [his possessions] for his daughter as he does for his son" (Ketubbot 52b). The Talmudic discussion of this question shows that there was still latent fear that giving one's daughter a dowry was against the spirit of the Torah: "And did the Rabbis come along and rule that daughters inherit?" In other words, since the possessions given the daughter as a dowry were deducted from the son's allotment, the son's right of inheritance was harmed. Therefore Judah bar Meremar did not wish to be present in a place where fathers gave their daughters a dowry.
However the Sages' remarks in praise of giving a dowry worked their way into the parents' consciousness, and by the geonic period daughters were given large dowries. As Mattathias Gaon said, "Now it has become customary to give more and more," or as another responsum indicated, "Today, would that a person gave to his son as he gives to his daughter."
Talmudic literature has additional regulations providing for the daughter's welfare: sons who inherit their father's estate must provide the daughters support (food and lodging) until they marry, and when the daughters marry they must give them a dowry worth at least "a tenth of the property." The Jerusalem Talmud records another practice whose purpose was to ease the position of a father who wished to give his daughter a dowry. Namely, a condition was inserted into the ketubbah providing that if the woman were to die childless, her husband would not inherit the dowry, rather it would revert back to her father's house. Such terms also appear in ketubbot discovered in the Cairo genizah, with the emphasis that this stipulation comes from the land of Israel. Another stipulation found in ketubbot from the land of Israel discovered in the Cairo genizah gives the woman absolute ownership of her dowry with the right to do with it as she pleases, and denies her husband any right to these assets, either in her lifetime or after her death: "They are not for him or his son after him."
In the geonic period we hear of a father who, in anticipation of his daughter's marriage, gave her a "bill of inheritance," according to which she was entitled to receive an equal portion with that of each of his sons. Sometimes such a document was given directly to the groom. From the sixteenth century on these documents went by a variety of names according to the relative part in the inheritance given the daughter: "bill of half- a- male inheritance," and "bill of a whole male inheritance." The former gave her property from the estate equal to half the portion inherited by a son, and the latter gave her equal inheritance with each of the male heirs.
Although writing a will is vested in the halakhah and a person may draw up his will as he chooses, giving his possessions to whomever he wishes and even dividing his wealth equally between his son and his daughter, nevertheless some communities went so far as to divide his property equally even without a will. In 1494 the Castilian rabbis who were exiled to Fez established a regulation stating: "When they leave after them both sons and daughters, the daughters shall inherit equally with the sons."
Among the legacy left by Rabbi Herzog were many papers pertaining
to the daughter's inheritance, including proposals for taqqanot,
or regulations, giving the daughter an equal portion with the
son, in the spirit of the regulation of the Castilian Jews. From
the correspondence he had with other halakhic authorities, which
is also documented in his writings, it appears that other rabbis
did not find sufficient basis in the halakhah for issuing such
taqqanot and therefore opposed such a regulation. (Cf.
I. Herzog, Tehukah le-Yisrael al-pi ha-Torah, II, Jerusalem
1989, ed. Wahrhaftig, p. 95ff.)
Prepared for Internet Publication by the Center for IT & IS Staff at Bar-Ilan University.