Community Magazine October 2009

The T op 10 W 1 HO ARE HALACHICALLY CONSIDERED YORESHIM (HEIRS)? The halachot of yerusha (inheritance) are derived from Hashem’s response to the daughters of Selofhad, who had no brothers, and asked Moshe Rabbenu who would inherit their father’s portion in Israel ( Bamidbar 27:1-11). These halachot include an order of succession. For example, based on these halachot, if a man passes away and is survived by a wife, a son and a daughter, the son is the sole yoresh (heir). The widow is entitled to either continued sup- port from the estate or the amount specified in her ketubah (mar- riage agreement), while the daughter is entitled to support until her marriage. If there are no sons, the daughter inherits the entire estate. If there are no children, the husband’s father or brothers are the halachic heirs. A wife never inherits her husband’s estate. On the other hand, when a woman dies leaving a husband and children, the husband would generally receive the entire estate. These guidelines are very different from State law. In New York State, if someone dies intestate (without a will) and is survived by a spouse and children, the spouse receives $50,000 plus half of the remaining estate, and the remainder is divided equally among the children. If there are no children, then the spouse receives the entire estate. If there is no spouse, the entire estate is divided equally among all the children. C 2 AN ONE OVERRIDE THE LAWS OF YERUSHA (JEWISH INHERITANCE) BY PREPARING A WILL? Based on the halachic principles codified by the Shulhan Aruch and on halachic responsa daing back as far as the Rashba, most poskim (halachic authorities) today hold that a written will does not suffice to circumvent the Torah’s laws of inheritance. A will takes effect only after death, by which time the Torah’s laws of inheritance have already transferred the deceased’s property to the yoreshim (the hala- chic heirs). According to other poskim , however, including Rabbi Moshe Feinstein z.s.l. , a will that is enforceable in a legal court is recognized as a valid document by halacha . People who seek to satisfy the majority view, that a will is not valid, generally accomplish this through a halachic debt to non- yorshim or lifetime gifts. I 3 S THERE AN OBLIGATION TO FOLLOW THE DECEASED’S WISHES? There is a missva to obey the wishes expressed either formally (in a will) or informally by the deceased. Nowadays, however, in most circumstances, the Bet Din (Jewish Court) does not have the power to enforce the fulfillment of this obliga- tion. Given the unexpected changes in family dynamics, it is advisable to draw up an estate plan that is enforceable in both court and Bet Din. W 4 HAT HAPPENS IF THERE IS NO WILL? In most cases, a distribution made according to state law will be contrary to halacha , which from the Torah’s perspective would constitute gezel (stealing) from the yoreshim . Neglecting to write a will also promotes mahloket (discord) in the family, which we must obviously endeavor to avoid. It is certainly preferable to rely on those authorities who accept the validity of a will than to have no will at all and leave the property to be handled by the State, contrary to halacha . In addition, rela- tively simple halachic estate planning will satisfy most halachic opinions. D 5 O THE LAWS OF YERUSHA APPLY TO A MARRIED COUPLE’S JOINTLY OWNED ASSETS (SUCH AS BANK ACCOUNTS AND REAL ESTATE)? The rights of joint owners are determined at the time the joint own- ership is established. If the original agreement included rights of survivorship (meaning that when one dies, the survivor is entitled to the entire account or property), then from the Torah’s perspec- tive, the surviving spouse is not “inheriting” anything by taking the entire property. Instead, he/she is taking his/her rightful share as determined by the terms of the original agreement between the joint owners. W 6 HAT TYPES OF ESTATE PLANNING ARRANGEMENTS ARE POTENTIALLY PROBLEMATIC? Wills, revocable living trusts, life insurance polices, annuities, retirement accounts, and any other kinds of beneficiary designation for assets that have value during the owner’s life can be problem- atic. Conceptually, there is no difference between naming a benefi- ciary in a will and naming a beneficiary on an account application form. According to the poskim who hold that a legally binding will poses no halachic problems, any legally enforceable beneficiary designation should likewise be acceptable. Secular law often conflicts with the Torah’s laws of inheritance. As such, every Jew must ensure that assets are distributed to his or her heirs in a way that is both halachically and legally acceptable. Questions & Answers About Wills, Inheritance & Halacha SHAUL ELNADAV, ESQ 80 COMMUNITY MAGAZINE