זכותה של בת לרשת; Bava Batra 110a, 115a and 139b
The Jewish Law of Inheritance provides that those heirs, whom the Torah deems to be closest to the deceased, inherit first. The Torah deems the deceased’s children to be closer to the deceased than the deceased’s parents or siblings. Accordingly, if a daughter is the only child of her deceased father, she, and not her father’s siblings or parents, inherits his estate. If, however, she has a brother, he inherits the entire estate and the daughter inherits nothing.
A husband inherits the estate of his wife but the wife does not inherit the estate of her husband. A son or a daughter (who has no brothers) inherits the estate of their mother, but a mother does not inherit the estate of her children.
Why is it that the Jewish law of inheritance appears, in certain situations, to disinherit women?
Before attempting to address this question, one must be prepared to come away with an incomplete answer. This is because the Torah refers to the Laws of Inheritance as –חוקת משפט – Chukat Mishpat. This term, Chukat Mishpat, is an oxymoron. The term – חוק – Chok, or – חוקה – Chukah means a decree that we cannot fully understand, yet we adhere to it because it is the will of God. The term – משפט – Mishpat means a law that we are able to understand and probably would have legislated ourselves had God not legislated it.
A typical example of a Chok is the prohibition against wearing shaatnez, clothes made of wool and linen. A typical example of a Mishpat is the prohibition against murder.
The Laws of Inheritance are a Chukat Mishpat, both comprehensible in part and incomprehensible in part. This is not as strange as it may seem. On the one hand we are disposing of our own property and have a right to say who will inherit us. On the other hand, at the time of death, the property is no longer ours to dispose of and a higher authority, the Torah, decides who will inherit it.
In attempting to explain the phenomenon of the Law of Inheritance as it applies to the woman, two principles should be borne in mind.
The first principle is that the financial family unit in Jewish law is determined by the family of the father, not the mother. The children in the family unit look to their father for financial support. The father’s property is the “family bank.” It will be drawn upon to support his children. It may also be used to support his sons, their wives and their children, if the need arises, when his sons get married.
The father does not need to worry about his daughters when they marry because the family bank of the husband’s family unit will support them. Now, if the daughter inherits her father and then marries, then upon her subsequent death, the assets she received from her father’s estate will be inherited by her husband, if he survives her, or by her children. As a result, some of the assets of her father’s family bank will be diverted away by the daughter to her husband’s family unit.
In order to prevent such diversions, the Torah limits the right of the daughter to inherit the estate of her father in situations where an equally close heir, such as a son, survives the father. Accordingly, if the daughter has brothers, she does not inherit her father’s estate at all. If, however, she has no brothers, she will inherit her father’s estate because she is the closest surviving heir of her father, even though assets from the family bank will be diverted.
The second principle to bear in mind is that the rights of the daughter and the wife to the estate of the father/husband are only part of their financial rights to the family bank. Both the daughter and the wife have other rights against the family bank for financial support. Were they to receive a portion of the estate in addition to these other financial rights, they would be double dipping.
What are these other rights of the daughter and wife of the deceased against the family bank?
Both the daughter and the wife of the deceased have the right, following his death, to have his estate pay for their food, clothing and medical expenses and the right to use the household utensils and the services of the domestic personnel of the family household.
The expenses involved in the support of the daughter and the wife are a charge on the estate in the hands of the sons. If there are insufficient assets in the estate to pay for the upkeep of both the sons and the daughters, the sons must first take care of the needs of their sisters even if this means that the sons will have to go begging.
The wife has the right to continue living in the family house until she remarries. The daughter has the right to have her brothers’ pay for her furnished lodging until she marries. In addition, the daughter is entitled to receive from her brothers a dowry to be paid to her out of the estate. The amount of the dowry is the greater of the amount that the father gave to his other daughters who married during his lifetime or 10% of the estate.
Although all of this may only take us part of the way to better understand why sons inherit ahead of daughters and wives, it does not take us all the way. For example, the legal right of the daughter to receive support from the estate (not the right to the dowry) expires when she reaches the age of 12 1/2, –בגרות – Bagrut.” From then on, she must rely on charity. Why this is so, is as much of a mystery, a Chok, as death itself.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].
