Q&A: Division of an Inheritance When One of the Heirs Owed Money to the Deceased
Division of an Inheritance When One of the Heirs Owed Money to the Deceased
Question
Hello Michi,
I’m writing to you to clarify a halakhic issue regarding an inheritance that is owed.
The details
• There are four brothers.
• They are supposed to divide the inheritance equally.
• Moshe, one of the brothers, borrowed 200,000 shekels from his mother during her lifetime. There is a promissory note for this loan, and an acknowledgment from the brother that this was not a gift but a loan. He borrowed it less than a year before her death, at a time when there was no reason at all to think she would die so suddenly.
• There are several assets, mainly apartments, left to be divided among the brothers. The total value of the assets is about 10 million shekels.
The discussion
One of the other brothers is asking that Moshe settle his debt with the heirs independently of the division of the apartments.
Moshe does not want to pay out that amount in cash (50,000 to each one), but prefers that his share in the other assets be reduced accordingly.
Which sources would you turn to in order to clarify this issue? Have you perhaps ever come across something similar? Or a topic in the Talmud that could help?
Answer
I’ll write some brief points that come to mind right now, without checking the matter in depth.
The rule is that brothers who divide an inheritance are considered like buyers, not like heirs. See Maimonides, Laws of Neighbors 2:12 and 11:20 of the laws of the Sabbatical year, and the Tur and Shulchan Arukh, Choshen Mishpat 173:3. This means that before the division, all the property belongs to the estate as a whole (all property, until the inheritance is divided, is still considered to be under the legal domain of the deceased). Therefore, there is logic to the demand that the debt be repaid before the division, since the debt is owed to the estate as a whole and not to the heirs individually. Also, whatever that brother has in the estate is still only something expected to come to him, not something already in his possession, and seemingly he cannot repay his debt from it. That is at least if the time for repayment has already arrived. If it has not yet arrived, then there is room to view the situation as it stands at the actual time of repayment, and if the division has already taken place, the situation changes into that of an ordinary debt repayment.
What if the debt and the repayment are considered to be to the heirs? Then the borrower can repay in cash or with something of equivalent value, and his share in the estate is something of equivalent value (best-quality property). Now we have moved to discussing whether, in an ordinary debt, the borrower can force the lender to accept repayment in land instead of cash. See Choshen Mishpat 74:6 and 74:5 there and the commentaries, from which it seems that he cannot. However, here the lender is an adjoining owner, since he has a share in that same house, and therefore perhaps it would be a Sodom-like attitude on his part not to accept an additional share in the house as repayment, although that argument can be rejected.
However, if the borrower is in financial distress, it is relevant here to discuss the law of arranging terms for a creditor, because in essence there is a dispute here between the heirs and the borrower whether he will repay them in cash or in real estate, and if he has no cash they can be compelled to accept part of the house instead. But this law of arranging terms applies only when the borrower has no money.