In New Jersey and New York, individuals have the right to indicate their choices for who will inherit their assets, provided the document complies with applicable statutory requirements. It is common for many married couples to designate their spouses as beneficiaries under their respective wills, and to designate their children as equal secondary beneficiaries. However, one should ensure that his or her conduct complies with Jewish law.
Under Torah law, a husband inherits his wife, but a wife does not inherit her husband. In addition, sons inherit their parents, but daughters do not (unless there are no sons). Finally, firstborn sons (qualifying as a bechor under Jewish law) are entitled to a double distribution (pi shnayim) of certain assets from their father.
What approaches exist to allow a Testator (the one executing the will) to properly navigate his or her estate planning?
One popular technique is for the Testator to create a conditional chov (legal debt obligation) that would be waived if the beneficiaries under one’s will accept the indicated distribution. If they would not, the chov would halachically require payment to the obligee, ahead of one’s Torah beneficiaries. For example, if Husband accepts upon himself a conditional chov (in an amount equal to or greater than the total of his assets) payable to his wife, and their two sons would not accept Husband’s distributing all his assets to his wife upon death, the sons would not be able to inherit under Jewish law in any event, as the chov would provide their mother with rights to their father’s assets ahead of them.
Another technique, particularly in situations where the aforementioned conditional chov may not be practical, is to avoid using language of “bequest,” “devise” or “inheritance” in the will. Rather, all distributions would be referenced as “giving,” or labeled as a “gift” (the tax treatment of such is beyond the purview of this article). The advantage to this is that under Jewish law, one is allowed to gift their property to whom they would like, whereas the Torah law of inheritance applies to distributions post-death. However, under Jewish law, one may not gift post-death. Nonetheless, Rav Moshe Feinstein famously opined that since secular law recognizes post-mortem gifting, halacha would allow this gifting to be effective. By labeling one’s distributions as gifts, there can be a basis to construe a gift as having been made a moment before death, avoiding the issue of the Torah inheritance rules.
The above is a simplified explanation, and there are additional factors that should be evaluated, in consultation with one’s rabbi, to ensure proper drafting.
By Daniel R. Lasar, Esq.
Daniel R. Lasar, Esq., admitted in New Jersey and New York, practices estate planning, immigration, real estate, and corporate law. He can be reached at [email protected].
