Halakhah su Numeri 27:11

Although Torah law dictates that wives do not inherit their husbands’ estates and that daughters inherit nothing from a testator who has sons, the most commonly desired distribution today is for sons and daughters to share equally in the estate and for one’s wife (if she is the mother of his children) to inherit the entire estate if he predeceases her. How can one achieve this personal objective without violating the halachic requirements of yerushah? One cannot simply stipulate that he wants his wife¹Rav Mordechai Willig notes (in an essay entitled “Inheritance Without a Fight,” available at www.torahweb.org) that in the common case of joint ownership of a home or other assets, the surviving spouse probably is the owner according to the Halachah as well (as we discussed in an earlier chapter). and/or daughters to inherit, as Halachah regards this as an invalid stipulation (Bava Batra 8:5). Even though we accept the opinion of Rabi Yehudah that “B’davar sheb’mamon tena’o kayam” (monetary stipulations are valid even if they contradict Torah law; Bava Metzia 94a and Shulchan Aruch E.H. 38:5), stipulations made in contradiction to the Torah rules of yerushah are invalid. The Rambam (Hilchot Nachalot 6:1) explains that the Torah (Bemidbar 27:11) describes the rules of inheritance as “chukat mishpat” (a decree of judgment), meaning that it applies in all circumstances and cannot be overridden by stipulations.

The extent to which Jews abided by the provisions of Jewish jurisprudence and were willing to forego recourse to non-Jewish courts even when a litigant would have found it financially advantageous to do so is reflected in a statement of R. Chaim Pelaggi, Masa Hayyim, ma'arekhet dalet, no. 23, in which he reports that from his earliest youth and throughout his life in the city of Izmir he never heard of an instance in which a person sought to enforce a claim to a share in the estate of a deceased to which he or she was not entitled according to the laws of the Torah, despite the fact that such a claim would have been routinely recognized by the Turkish courts of the time. One contemporary writer has remarked that "even today, among the orthodox everywhere from New York to Bombay, it was considered a disgrace for a Jew to summon a fellow Jew before the courts of the land."³George Horowitz, The Spirit of Jewish Law (New York, 1973), p. 651. This is not to say that instinctive obedience to Halakhah in all its facets was uniform at all times and in all places. In some locales it was necessary to reinforce the statutory prohibition against seeking redress in a secular judicial forum, particularly with regard to matters of inheritance, by issuing formal bans against such conduct.⁴See Teshuvot Maharashdam, Even ha-Ezer, no. 131. Rabbi Jacob Kuli, Yalkut Me-am Lo'ez, Numbers 27:11, found it necessary to warn that, in the long run, not only will a person fail to profit from a recovery in a civil court, but he will be punished by loss of his fortune as well.