Bar-Ilan University's Parashat Hashavua Study Center

Parashat Pinhas 5767/ July 7, 2007

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. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University. Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

 

A Daughter’s Inheritance

 

Dr. Yoel Shiloh

 

Ashkelon College

 

According to this week’s reading, by the law of the Torah daughters do not inherit from their father, unless the father had no sons:   “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).  The Sages learned from this that “sons inherit and daughters receive support.” [1]   In other words, after a person dies, his property passes on to his sons as inheritance. [2]   Daughters receive their share under the legal clause of “support,” not “inheritance.”

In general “inheritance” is far more respectable than “support.”  The heirs are obliged to provide for the daughters of the family, i.e., to give them “support,” only if they are still minors and/or not married, since the support of a married woman falls on her husband.  The law which establishes that “sons inherit and daughters receive support” expresses the point of view that the burden of providing for the family falls on the sons, and therefore they need their father’s property; the daughters are not obliged to participate in the responsibility of being providers.   Also the widow of the deceased does not inherit from her husband.  The heirs are obliged to provide her support, as well, even if she is not their mother, or alternatively, to pay her the sum which their father undertook to pay her when they were wed, as specified in her ketubbah. [3]   Regarding the laws of a daughter’s inheritance, Radbaz (R. David ben Zimra, 1479-1573; head of Egyptian Jewry for 40 years, author of Shut Radbaz and other works) says: [4]

Learned gentiles challenge us, asking how it can be that the Torah does not bequeath anything to daughters, and I am in the habit of answering them that the Torah understood full-well the merciful intentions of the people of Israel, that their brothers would support them and marry them off as befits their honor.

“Half a Male”

Various regulations (takkanot) were instituted over the generations in Jewish communities and private agreements were drawn up in families out of a desire to add to the laws of the Torah regarding the inheritance of daughters.  Shtar hatzi zakhar” (a promissory note of half a male’s portion) is one such arrangement.  An early regulation of this sort, ketubbat banin dikhrin, dates back to the time of the Sages. 

In order to understand what required emendation, we shall provide the illustration of a family situation that used to exist in ancient times:  suppose that in a certain family Jacob married Rachel, and at the time that he married he was already father to a son, Reuben, from a previous marriage to another woman.   As a wedding present Rachel’s father gave her a valuable plot of agricultural land.   Rachel and Jacob had a son, Joseph.   When Rachel died, Jacob inherited her property, [5] and the field that had been given her as a bridal present passed into his ownership.  After some time, Jacob died as well, and his property, including the field that he had inherited from Rachel, was divided among his sons, Reuben and Joseph.   That is, Reuben received part of the field that had once belonged to Rachel’s father, even though he had no hereditary relationship with Rachel or her father.   This seemed unfair, and led to situations where parents tended not to give large amounts of their property to their daughters who married, for fear that the property would pass into the hands of other families.

Ketubbat Banin Dikhrin

In order to amend such situations, the Sages instituted a regulation called “ketubbat banin dikhrin” (a ketubbah or marriage settlement with a clause pertaining to the male children). [6]   What this regulation signified in the situation described above was that Joseph, the son of Rachel and Jacob, alone would inherit all the property that had belonged to Rachel, including all that Jacob had promised her in her ketubbah when the two were wed.   The Sages described the purpose of this regulation: [7]   “so that a person will be just as willing to give to his daughter just as he gives to his son.”

The “ketubbah of male children” remained in force centuries after the Sages, but its practical importance gradually diminished until it was abolished altogether.  The circumstances under which the regulation was abolished are unclear. [8]   Rabbi Meir ben Barukh of Rothenburg (Maharam) notes: [9]   “I do not know for certain whether the geonim decided to abolish it, or whether it became cancelled of its own accord,” and Rema (R. Moses Isserles) states definitively: [10]   “I never saw nor heard of it being enforced in these times.”

As the status of the ketubbah clause pertaining to male children waned, we find that in the Diaspora various other regulations and customs emerged to take care of the daughter’s portion in her father’s inheritance. [11]   The Maharam of Rothenburg [12] cites a complicated case in which a father gave his daughter and son-in-law a promissory note granting the son-in-law inheritance along with the rest of his sons:

There are quarrels in our midst regarding Reuben, who had a first-born son, another son, and a daughter, [13] and when his daughter married he wrote his son-in-law that “from this day hence, and after his [the father-in-law’s] death he should receive as one of his sons.”  Later his (Reuben’s) wife died, and he married another woman and had sons from her.   His second wife died, as well, and he also gave them (a promise) that they would inherit with the rest of their brothers the portion coming to them in the inheritance.   Then he, too, died.

Second Marriages

The father had given the son-in-law of his daughter from his first marriage a promissory note, assuring him a portion in the inheritance like that of the brothers of his (the son-in-law’s) wife.  Over the years the father had additional sons from his second wife.   The Maharam was asked to rule what portion of the inheritance the son-in-law should receive.   After a complicated computation, the Maharam concluded that the son-in-law should receive one sixth of the estate.

We know of various regulations and customs by which the father makes promises of inheritance to his daughter and son-in-law.   The most well-known is the “takkanat hatzi zakhar” or a promissory note of half a male’s portion.   What this means is that the father gives his daughter, upon her marriage, a promissory note in which he promises upon his death that her portion in the inheritance shall be half of that which the males inherit.  There were also instances in which the father promised his daughter an equal portion to the sons’ in the inheritance, e.g., a “promissory note of a full male’s portion.” [14]   A “half male’s portion” is considered a wedding present that the father gives his daughter in addition to her dowry, and essentially it was also a gift to the bride-groom, since he and his wife would receive the inheritance jointly, along with his brothers-in-law, after the death of his father-in-law.

The term, “promissory note of half a male’s portion” first appeared about five hundred years ago although some claim that it is more ancient. [15]   Rema [16] speaks of it as something widespread and generally accepted – “the promissory note of half a male’s portion which is in use today.”   Bear in mind that not all fathers gave their daughters a promissory note of half a male’s portion.   For example, Glückel Hemel [17] recounts the following about her father’s death: [18]

My late husband and my brother-in-law R. Joseph Segal did not wish to receive any inheritance, even though each of them had a promissory note of half a male’s portion, and so they left everything to my mother and the orphans.

In the European Jewish culture, the promissory note of half a male’s portion was considered a mark of status that only wealthy Jews could allow themselves.  Thus, for example, the writer Y. L. Peretz puts into the mouth of the hero of his story the dream of being a rich man: [19]   “And then he would be in good shape!  His sons he would send to one of the yeshivas, his daughters he would give promissory notes of half a male’s portion … etc.”

Inheritance in Israel

When the state of Israel was established, it became necessary to establish legislation regarding the laws of inheritance.   Under the Mandate Government, the rabbinical courts ruled, as required by Mandate law, that there be equal distribution of the inheritance among sons and daughters.   The chief rabbis, Rabbi Herzog and Rabbi Uzziel, wished to restore the ancient practice and have the sides consent to distribution of the inheritance in the rabbinical courts according to the laws of the Torah.  They also hoped and expected that the Knesset, when enacting the Israeli law of inheritance, would want to base it on the Halakhah; if the Chief Rabbinate would issue the necessary regulations that are possible from the halakhic point of view, then perhaps Knesset would even adopt the halakhic law of inheritance. [20]   The chief rabbis prepared a bill proposing a halakhic law of inheritance, which inter alia, was also based on the regulation of a “promissory note of half a male’s portion,” [21] but their proposal met the opposition of most of Israel’s rabbis and never came to fruition.  In 1965 the Knesset adopted a law of in heritance that had almost no connection with the Halakhah.

By Israeli law, sons and daughters share equally in the inheritance.  Since this is not consonant with the Halakhah, several years ago a proposal was made by Rabbi Zalman Nehemiah Goldberg [22] to reinstate the promissory note of half a male’s portion or of a full male’s portion in our day, so that the current legal practice in the state not be at odds with the Halakhah.  Rabbi Goldberg proposed “at every wedding to have the rabbi draft a promissory note of half a male’s portion or a full male’s portion, and request the father of the bride to sign this document.”

To the best of my knowledge the proposal was not accepted, and we have not seen the parents of the bride being asked to sign any such document.  Perhaps one should renew Rabbi Goldberg’s proposal and reinstate the use of a “promissory note of half a male’s portion” so that the laws of the state of Israel in this matter will also accord with the laws of the Torah.

                                                                                                               



[1] Mishnah, Ketubbot 4.6.

[2] See Rashi on Ketubbot 49a, s.v. ha-bannim yirshu, who believes that this refers to the takkanah about banin dikhrin (= male children), which we discuss below, and not regular inheritance.

[3] Mishnah, Ketubbot 4.12.

[4] Metzudat David, Volkova, 1862, par. 530.

[5] Mishnah, Ketubbot 6.1.

[6] Mishnah, Ketubbot 4.10.

[7] Babylonian Talmud, Ketubbot 52b.

[8] For various surmises why the regulation was abolished, see M. Alon, Ha-Mishpat ha-Ivri, Vol. 1, Jerusalem 1992, p. 538; Y. Rivlin, Shtar hatzi zakhar, Dinei Yisrael 17 (1993-1994) pp. 152-179.

[9] Resp. Maharam of Rothenburg, Bloch edition, Berlin 1891, p. 176.

[10] Even ha-Ezer 111.5.

[11] There is no consensus on these regulations being a continuation and substitute for the regulation of “male children.”  Although Rivlin does take that approach (see note 8, above), there are considerable and substantial differences between these regulations.   The regulation of “male children” gives rights of inheritance to the grandchildren of the daughter’s father, whereas the regulation of “half a male’s portion” gives rights to the son-in-law of the daughter’s father; the regulation of “male children” prevents property from being passed from one family to another, whereas the regulation of “half a male’s portion” does not prevent this; the regulation of “male children” encourages voluntary removal of property from the father, during his lifetime, in indeterminate sums, whereas the regulation of “half a male’s portion” removes property from the heirs of the father, at a fixed and well-defined rate.

[12] Resp. Maharam of Rothenburg, part 4 (Prague ed.) par.1.4.

[13] In other words, he had three children, his first-born son and another son and daughter.

[14] The first time we find a regulation providing for daughters to inherit equally with sons is in the Takkanot Tolitula (Toledo Enactments), cited in Responsa Ritba, par. 180.  Such a regulation also appears in the takkanot of the rabbis of Morocco, and it is based on an ancient Castillian regulation.   See S. Bar-Asher, Sefer Takkanot, Jerusalem 1991, p. 52:  “When sons and daughters survive them, the daughters shall inherit equally with the sons.”

[15] S. Assaf, Li-She’elat ha-Yerushah shel ha-Bat, Sefer ha-Yovel l-Y. Friedman , Berlin 1937, Hebrew part, pp. 8-13.

[16] Even ha-Ezer 90.1.

[17] Glückel is a German Jewess who wrote a biography of herself and her family some three hundred years ago.  She was born in 1647 and died in 1727.

[18] Zikhronot Glückel Hemel, trans. into Hebrew by A. Z. Rabinowitz, Devir, 1929, p. 68.

[19] From the story, “Nummer 42,” Kol Kitvei Y. L. Peretz, vol. 3, book 1, Devir, 1962, p.19.

[20] For greater detail, cf. Z. Wahrhaftig, Takkanaot ha-Rabbanut ha-Rashit,   70 Years of the Israel Chief Rabbinate, Heikhal Shlomo., 2002, pp. 85-131.

[21] Rabbi I. Herzog, Tehukah le-Yisrael al pi ha-Torah, Vol. 2, Hatza’at Takkanot be-Yerushot, ed . A. Wahrhaftig, Jerusalem 1989, p. 108.

[22] Yerushat ha-Bat (Le-Hiddush Minhag Shtar va-Hetzi), Tehumin 4, Alon Shevut 1983, pp. 342-353.