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Rabbi Moshe Feinstein and Halachic Wills

According to Jewish law (“Halacha”)1, is an Orthodox Jew who accepts an inheritance under a secular will guilty of theft? It depends on who you ask.

First some background.  According to Halacha, dead people have no rights over the property they owned while alive.  As such, they have no right to dictate what happens to their property after death.  Jewish religious law has an inflexible set of forced heirship laws2.  This greatly differs from secular common law which, in principle, accepts the idea that people have testamentary independence and can do whatever they want with their property after their demise.  Given the conflict of Halachic and secular inheritance law how should Orthodox Jews do their estate planning?  Is an Orthodox Jewish beneficiary permitted to accept his inheritance under a secular will which contravenes Halacha?

Many modern orthodox rabbis take the position that secular wills are Halachically valid based on the religious dictum dina de-malkhuta dina (Aram. דִּינָא דְּמַלְכוּתָא דִּינָא), which literally means the law of the kingdom governs3.  On the other hand this is not the view of a majority of the Hareidi poskim4.  Some rabbis suggest that regardless of the validity of secular wills the beneficiaries may still keep the inheritance. Others suggest that a beneficiary relying on a secular will as opposed to the Jewish law of inheritance may, under Jewish law, be guilty of theft.5

To avoid the problem there are those Orthodox Jews who look to the techniques used by rabbis to essentially acknowledge debts or make gifts given during the testator’s lifetime which do not take effect until after the testator’s death.6
Now these sorts of Halachic wills may create potential liability both from a tax and negligence perspective.  But those issues are beyond the scope of this small paper.  These sorts of concerns may be the reason why some Orthodox Jews have only secular wills.  Presumably, they rely on the opinion of Rabbi Moshe Feinstein7 who is one of the greatest Jewish sages of the 20th century.

In his Responsa Iggerot Moshe, Even Ha‛ezer 104 Rabbi Feinstein wrote as follows, “Although we are dealing here with a gift to be made after the death of the donor, and there is no such thing as a kinyan8 after death, as the object no longer belongs to the donor and such a gift is therefore not valid in Jewish law, nevertheless, according to the law of the land a person can legally transfer with effect after death money or any other object which at that time obviously no longer belongs to him or her … but in essence it is clear, according to my humble opinion, that a testament of this kind, the dispositions of which will certainly be put into effect by the authorities of the country, does not need a kinyan as one could not imagine a more effective kinyan than this. Hence, since a kinyan is not necessary, the legatees can uphold their right also against those persons who are the proper heirs by Torah law, although there is no such thing in Jewish law as a gift after the death of the donor.”9

I once consulted Professor Rabbi Steven H. Resnicoff10 who was granted his rabbinic ordination by Rabbi Feinstein and also serves as a professor of law at DePaul University College of Law.  Professor Rabbi Resnicoff explained that, as a starting point, the majority of Hareidi rabbinic authorities disagree with Rabbi Feinstein and argue that Jews must have Halachic Wills.  He also explained that his personal view is that relying on the concept that in Jewish law provides that commercial customs prevalent at any given time are accepted as Halacha does not apply here. In his opinion, that would not affect Jewish laws regarding inheritance.  Professor Resnicoff believes Rabbi Feinstein engages in a novel two-step analysis. First, he says that a person who executes a will does so with a complete gemirat da’at11 to transfer her/his property to his beneficiaries pursuant to the will. The reason why there is a gemirat da’at, is because the testator knows that the secular government will definitely enforce the will. Second, Rav Moshe says that, given this gemirat da’at, the property can be conveyed without a formal kinyan.  Rav Moshe discusses several cases in which change of ownership occurs without a kinyan.12  Consequently, even though there is no kinyan after a person’s death, Rav Moshe argues that the property of the estate halakhically belongs to the people as set forth in the will.   In other words, Rabbi Feinstein is not saying that it’s acceptable for Halacha to be ignored in this context.  Instead, by executing a secular will while knowing that the state will certainly enforce it, a testator can convey the property in accordance with Halacha.13

Over the past year I had the pleasure of discussing and debating some of these issues with Professor Resnicoff.  I found that our discussions and his scholarly articles on the topic helped me better understand this multi layered nuanced topic.  For those dealing with the nexus of common law and Jewish religious law I refer you to Professor Resincoff’s articles which are available on line at (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=625213).

Footnotes
  1.  The Jewish Virtual library provides a fuller definition of Halacha and how Jewish religious law has evolved.  See http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0008_0_08206.html
     
  2.  For Orthodox Jews the forced heirship laws are set out in Numbers/Bamidbar 27:5-11.  If the deceased had sons they are the only heirs of their father’s estate. If there are no sons then daughters are the heirs. The first born son (the “Bechor”) receives two shares and the other sons receive one share. The deceased’s wife received a payment set out in her marriage contract and according to Halacha the deceased’s wife is supported out of her husband’s estate until she claims the money to which she is entitled under her marriage contract or until she remarries.  In accordance with Halacha the unmarried daughters were supported by the estate until they were married.   For a fuller treatment of this topic I refer the reader to an excellent article authored by Litman, Donna and Resnicoff, Steven H., Jewish and American Inheritance Law: Commonalities, Clashes, and Estate Planning Consequences (August 1, 2012) available at SSRN: http://ssrn.com/abstract=2252912 .
     
  3.  I have found The Talmud, The Steinsaltz Edition: A Reference Guide very useful with respect to finding precise definitions of Halachic terms.   It defines   Dina de malchuta Dina – דִּינָא דְּמַלְכוּתָא דִּינָא as follows, “lit., the law of the kingdom is the law.  The Halachic principle that Jews must obey the laws of the state in which they live.  The laws and regulations of the state are considered valid in Jewish law as well.  This obligation applies mainly in civil law, and not in matters of ritual law.”  For an online explanation  I refer the reader to The Jewish Virtual Library which can be found on line at http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0005_0_05228.html
     
  4.  Hareidi, in this context, refers to ultra –orthodox Jews.  Poskim refers to those Rabbis who are asked to review the body of Jewish law and determine how to apply it to certain situations.  For a fuller explanation of Poskim I refer the reader to an article on this topic from the Jewish Virtual Library found at http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0016_0_16018.html
     
  5.  For an in depth scholarly review of this topic I refer the reader to the article authored by Litman, Donna and Resnicoff, Steven H., Jewish and American Inheritance Law: Commonalities, Clashes, and Estate Planning Consequences (August 1, 2012) available at SSRN: http://ssrn.com/abstract=2252912 .

    Even those who believe that Orthodox Jews must have Halachic wills believe that secular wills may be necessary under certain circumstances.  For example, when there is a concern over who will become the legal guardians of one’s minor children then my impression is that most rabbis would recommend a secular will. I invite the reader to access a presentation by Rabbi Moshe Taub on u tube.   Rabbi Taub speaks of an incident where a woman converted to Judaism.  She had children.  Her Jewish husband predeceased her and she did not have a will.  Upon her demise the woman’s Christian family sought custody of her children and wanted to raise them as Catholics. Had she executed a will and indicated her preference as to the guardian of her children the ensuing court case may have been avoided.  Even if the matter went to court the mother’s wishes would have been given great weight by the court in determining custody of the children.  You can access the presentation at rabbi moshe taub on halachik wills Part 1 – YouTube.
     

  6.  The mechanisms used by rabbis to permit Orthodox Jews to do estate planning while still complying with Jewish religious law include: (1) inter vivos gifts, (2) transfers to revocable trusts, and (3) acknowledgment of debt.  For a detailed review of these techniques see
    •  Andre Isaacson Halachic Implications of Death Wills & Inheritances;
    • Dayan Isador Grunfeld, The Jewish Law of Inheritance: Problems & Solutions in Making a Jewish Will; Wills Halacha and Inheritance;
    •  Rabbi Pinchus Rabinowitz, The Tzavo’ah – A complete Guide to Writing Wills According to the Halacha;
    • For some online information I refer the reader to the website of the  Beth Din of America Halachic Will Materials 6 (2008), at Halachic Will Materials – Beth-Din of America;  and
    • the article authored by Litman, Donna and Resnicoff, Steven H., Jewish and American Inheritance Law: Commonalities, Clashes, and Estate Planning Consequences (August 1, 2012) available at SSRN: http://ssrn.com/abstract=2252912.


     

  7.   For a brief biography of Rabbi Moishe Feinstein please see the article at the Jewish Virtual Library at http://www.jewishvirtuallibrary.org/jsource/biography/feinstein.html
     
  8.  The Talmud, The Steinsaltz Edition: A Reference Guide defines “kinyan” as follows, “Acquisition, mode of acquisition.  A formal procedure to render an agreement legally binding.  Unusually kinyan refers to mode of acquisition.  After the act of kinyan has taken place, the object is legally the property of the buyer.  Neither party can go back on the agreement, regardless of any change in market values, or any unanticipated change in the article itself.  Even if the object were to be destroyed while still in the physical possession of the seller, the buyer would not be entitled to get his money back.  Various modes of acquisition confer ownership, depending on the nature of the object such as Meshicha – pulling the article, mesirah – transfer, Chazaka – performing the act of taking possession hagbaha – lifting up the article, Haliphfin – exchange or barter.  The word kinyan when used alone without further definition usually refers to kinyan sudar.  On occasion, more than one action may be involved in the acquisition of an object.  For example money may be paid and the object may be physically picked up.  The Sages discussed the question of which act is the legal kinyan.  In general, money is not a valid kinyan for acquiring movable property.  The word kinyan may also refer to taking possession of abandoned property or to the precise moment where a forbidden action, such as theft or robbery is said to have taken place.  the term kinyan also applies to the conclusion and ratification of an action not directly connect to purchase and sale, such as performing a kinyan to confirm one’s acceptance of responsibility with regard to a future action or actions.”
     
  9.  For a thorough review of this topic including Rabbi Feinstein’s Halachic ruling I invite the reader to review the article authored by Litman, Donna and Resnicoff, Steven H., Jewish and American Inheritance Law: Commonalities, Clashes, and Estate Planning Consequences (August 1, 2012 available at SSRN: http://ssrn.com/abstract=2252912  .  I found the English translation of Rabbi Feinstein’s responsa in Professors Litman’s and Resnicoff’s article.
     
  10.  For more information about Professor Resnicoff see Steven H. Resnicoff – DePaul University College of Law.
     
  11.  The Steinsaltz Edition: A Reference Guide defines Gemirat Da’at as follows, “Lit. concluding an opinion.  An inner decision, a firm resolution.  This concept is important when doubt arises as to the legal validity of actionsand obligations.  In such cases it is important to know whether the person who did the deed undertook the obligation had made an inner decision to do so i.e., that he had resolved to take the action or the obligation upon himself.  An outer action without an inner decision is usually legally ineffective.”
     
  12.  A discussion of these examples would be too lengthy to include in this paper.
     
  13.  This analysis is very relevant where there is no testate succession.  My review of Rabbi Feinstein’s responsa suggested to me that inheritance by virtue of an intestacy would be equally acceptable under the principle of Dina de malchuta Dina

    דִּינָא דְּמַלְכוּתָא דִּינָא.  Rabbi Resnicoff strongly disagreed and persuaded me that I may be wrong.  For a full analysis of his position see Professor Litman and Professors Resnicoff’s article referred to above.
     

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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