Family feuds, especially around money, can get very nasty. Throw in some religious tension and watch the sparks fly. A nasty court battle is ongoing in Chicago where an Illinois court recently invalidated a will. The judge objected to the clause which disinherited any descendant who might marry a non-Jew, as four of the five grandchildren in this particular case did. As quoted in the Chicago Tribune (August 25, 2008) the judge remarked “suppose Max Feinberg had reservations about his descendants’ marrying a black person. Do we really want courts to enforce the worst bigotry imaginable?” While Jewish law shares the same abhorrence for any form of discrimination it appears to this writer that the judge has overstepped his boundaries.
Jewish law is divided into three broad categories; “religious” law, the laws of purity and impurity and those of a monetary nature. Whereas religious norms are fixed by the Torah and developed and interpreted by the Sages, monetary law can be quite fluid. While the Torah regulates much of our monetary dealings, in this realm and this realm only two consenting adults can agree to circumvent the laws of the Torah. While the Torah requires a paid bailee to make restitution if the object he is watching is stolen, the two parties can agree to exempt one from payment even if in the case of negligence. It is this ability to contract out of monetary law that explains why Jewish employers tend to pay workers only every couple of weeks as opposed to the Biblical obligation to pay every day.
It would appear that bequeathing one’s assets, they being of a monetary nature should be left to the discretion of each person. Thus not only can (and possibly should) one disinherit a child who turns his back on his people, a person may choose to give their money only to those who actually intermarry. While morally objectionable it is perfectly legal.
However Jewish law considers the disposition of an estate not just as a matter of monetary law but rather of religious law. A dead person no longer controls his money – you truly can’t take it with you – and thus it is the Torah law and not the deceased wishes which must reign supreme.
From the perspective of the Torah it is the male, (father or husband) who is obligated to support the female (daughter or wife). There is no obligation for a wife to work to help pay for the family expenses, that is the responsibility of the husband and the prerogative of the wife. The initial liens against an estate are to provide for single daughters until such time as they marry. Amounts above this basic support level would go to the male children (with a eldest receiving a double portion).
Such an approach does not sit will in our egalitarian age, something our medieval sages understood quite well. They advocated using legal mechanisms, adhering the letter of the law while circumventing its outcomes, where the “estate” will be allocated just before death, allowing the daughters a greater share in the inheritance. The use of such legal technicalities allows one to remain faithful to the integrity of Jewish law while ensuring that it is responsive to the needs of the day.
Yet even if no provisions are made for a proper “halachic will” the children are morally bound to abide by the wishes of the deceased. To see children in court fighting over the estate of their parents brings shame to them and dishonours the memory of the deceased. It is the ethical example that one demonstrates that marks a person’s true legacy .
