Q&A: Question Regarding the Inheritance of a Firstborn
Question Regarding the Inheritance of a Firstborn
Question
Hello Rabbi Abraham,
I wanted to ask you a question regarding the inheritance rights of a firstborn.
My father of blessed memory passed away about ten months ago and left a respectable inheritance to me and my firstborn brother. I became religious a little over a year ago, and my brother is still secular (for now). About six months ago we went to a lawyer in order to obtain an inheritance order in a civil court (not a rabbinical court), and the inheritance order states that the property is to be divided equally. I found some responsum online that says that if a firstborn voluntarily agreed to litigate in civil court, he is bound by their ruling. Here is the link to the responsum:
http://www.din.org.il/2011/02/20/%D7%90%D7%97-%D7%95%D7%90%D7%97%D7%95%D7%AA-%D7%A9%D7%94%D7%95%D7%A6%D7%99%D7%90%D7%95-%D7%A6%D7%95-%D7%99%D7%A8%D7%95%D7%A9%D7%94-%D7%91%D7%A0%D7%99%D7%92%D7%95%D7%93-%D7%9C%D7%A8%D7%A6%D7%95%D7%9F/
My question is whether I can rely on this and say that based on it, the firstborn waived his firstborn portion by agreeing to the issuance of an inheritance order in civil court.
I should note that my brother is not aware of the issue of the firstborn's inheritance rights, and he is not claiming them, but I am clarifying this in order to know whether I need to give him his firstborn portion even if he does not recognize his right to it.
Also, I wanted to add in this context that I read in a few places that one can claim "I can rely on my held position" according to the authorities who maintain that one cannot be compelled to sign without compensation,
and another point: those who hold that one must sign based on the law of returning a lost object—well, the law of returning a lost object to a secular Jew, or to someone who does not practice returning lost objects, is itself doubtful.
Best regards,
Answer
Have a good week.
First, I find it difficult to accept a waiver of a right when the person waiving it is unaware of that right. That is a mistaken waiver (because perhaps had he known of his right, he would not have agreed). Therefore, in my opinion, you need to inform him that this is the situation according to Jewish law (that is, that he is entitled to two-thirds), and if he gives it to you as a gift (that is, agrees to an equal division), then of course that is perfectly fine.
I did not understand your comments in the second letter. What does “to sign without compensation” mean? What exactly are you referring to here?
The law of returning a lost object (which I did not understand how we got to here) with respect to a secular Jew is not doubtful at all. First, secular people also return lost objects today. Second, this is generally a case of a child taken captive, and therefore there is no difference between a secular and a religious Jew with respect to obligations between one person and another. Third, state law requires returning lost objects, and the law is halakhically binding (in monetary matters). And fourth, if I understand correctly that you are referring to the duty to inform him of his right to the double portion as though that were returning a lost object, that is simply incorrect. You are robbing him, not merely failing to return a lost object. A claim of "I can rely on my held position" has no relevance here whatsoever.
All the best,
Michi
Discussion on Answer
I am not expert in the details of the laws of inheritance, and it is better to ask someone who is.
Briefly, in Shulchan Arukh, Choshen Mishpat 278:3, it is written that an inheritance from the father's father is considered property already in possession unless the father's parent died after the father himself died (for only then is it considered expected property). And if that inheritance is in the hands of others, it is no worse than a deposit, and a deposit is considered property already in possession, not expected property. As for the rental payments, see the dispute in Ketzot HaChoshen there, note 2.
Following up on the email,
I understood that there are halakhic authorities who hold that the law of the kingdom is law even regarding the division of inheritances, so maybe one could claim "I can rely on my held position" according to their view.
Indeed, in principle, I think one can claim "I can rely on my held position" in inheritance cases.
But such a claim is made by someone who is in possession. The question is whether you are considered in possession. After all, if the money came to you unlawfully, then you are a robber, not someone in possession. And perhaps this is a case of seizure after the doubt arose. All this brings us into questions of seizure and acting as judge for oneself. Simply speaking, one cannot act as judge for oneself where there is a dispute among the halakhic authorities. On the contrary, the one who seizes is the one taking from the party in possession. However, one could analyze whether the fact that the state gave you the money might indeed make you the one in possession; that itself would be by force of the law of the kingdom.
All this requires broad clarification, and at the moment I do not have time to do that.
My understanding is that the de facto situation today is that even rabbinical courts give daughters some share of the inheritance, and I also read in Yalkut Yosef that on the basis of this "I can rely on my held position," daughters can receive some compensation from the inheritance.
But in any case, what interests me more is the question about the apartment in Petah Tikva (you may have missed that email because I sent another email immediately after it; it appears above in the correspondence)
Here is a quote from Yalkut Yosef. It may be that according to this I am entitled to receive 10 percent of the firstborn portion:
According to the holy Torah and Jewish law, daughters do not inherit from the father together with the sons. However, if the sons request that the religious court attend to them in order to give them an inheritance order, and the sons wish to waive part of their portion in favor of the daughters so that they will share with them in the inheritance, they should approach the local rabbinical court and transfer rights from their hands through a full legal act of acquisition, or by means of an agav acquisition, in accordance with Torah law. The sons may not compel the daughters to sign away their share in the inheritance so that the religious court can issue an inheritance order to the sons; rather, the daughters may demand compensation for their signing. For they can claim "I can rely on my held position" according to the authorities who say that they cannot be compelled to waive their share. Therefore, the sons should give monetary compensation so that the daughters will agree to sign away their share in the inheritance, up to ten percent of the share that would have come to them under state law. [Responsa Yechaveh Da'at, vol. 4, sec. 65; Yabia Omer, vol. 9, Choshen Mishpat, sec. 8, p. 438]
I wrote to you that in my opinion this apartment, as an inheritance whose original owner died before your father, is not expected property but property already in possession (from Shulchan Arukh, Choshen Mishpat 278:3). But as I said, I am not currently expert in the details of this topic and the actual practice, and I do not have time to really investigate it. It is better to ask a halakhic decisor who is expert in this.
First of all, thank you very much for taking the time to answer me.
I understand your answer and accept it.
I wanted to ask regarding the issue of property that is merely expected versus property already in possession. A little before my father died, he found out about an inheritance that had been concealed from him by relatives. He began proceedings to recover the concealed property (shares in apartments). The process was completed only after his death, when at the end of the process the apartment shares were converted into one apartment in Petah Tikva. My question is whether this property is considered expected property or property already in possession. On the one hand, it is real estate, and on the other hand, it may have had the status of a debt and therefore be considered expected property. Also, as part of the compensation arrangement, we received monetary compensation for the rent from the apartment that had been concealed from us during the period of concealment. The question is whether the rental income is also considered expected property or property already in possession?
Best regards,