The second lecture, also by Rabbi Marburger, surveyed the various principles that are relevant to the halachic enforceability of wills, including whether a valid kinyan (transaction) can be accomplished by executing a will, the extent to which halacha incorporates domestic law (dina demalchuta dina), and whether and under what circumstances the heirs are required to honor the the wishes of the deceased.  Audio and video of past lectures are available on the Bais HaVaad website.  Audio downloads are free of charge, though registration is required.

According to an e-mail sent out this week, the third lecture, entitled “Wives, Firstborns, & Children That Are Astray” will be presented by Rabbi Dovid Grossman on Sunday 12/27/09 at 10 am EST.   The rest of the series, still unscheduled, will cover the following topics:

- How to Write a Halachic Will
- Trusts & Foundations
- Eldercare in Halacha
- Development Disability and Guardianship

Registration can be done through the website.

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Surprisingly, there have been very few recent decisions from any court on the legal effectiveness of the clause, which explains the widespread attention to the outcome of this particular case.

Two lower courts held that the clause violated state public policy, which encourages marriage and discourages divorce.  The Illinois Supreme Court took a more nuanced approach and upheld the validity of the clause under the narrow facts presented.  The Court explained that in this case the distribution scheme could have been altered by will or powers of appointment during Max and Erla Feinberg’s lifetimes.  Since no interests were vested until Erla Feinberg’s death, at which point the property was distributed outright, the estate plans never acted as a restraint on marriage or as an incentive for divorce.  The Court may very well have come out the other way and invalidated the clause had the beneficiaries been given a remainder interest in a trust on condition that they marry Jewish spouses.

The case deals with the so-called Jewish clause from a legal perspective.  But how Jewish is the Jewish clause?

As Rabbi Ari Marburger points out in the introductory webcast to Bais Havaad’s Halachic Wills & Estates Series, halacha draws a distinction between the validity and the appropriateness of an estate plan that varies the halachically prescribed order of distribution.  Just because the estate plan can be made to be halachically binding does not mean it bears halachic approval.  In fact, whether it is ever appropriate to vary the halachic order of distribution has historically been a matter of halachic dispute.  The disinheritance of a halachic heir is more problematic, but what constitutes a disinheritance is far from clear.

In the Feinberg case, the clause operated to disinherit four grandchildren.  Since grandchildren are not halachic heirs while their parents are  alive, the clause disinheriting them is inconsequential from a halachic perspective.  Rabbi Marburger suggests that even if the clause had been directed at the halachic heirs, contemporary authorities would allow the disinheritance.  Even so, while the clause may be valid, I am not aware of any contemporary traditional halachic authority that actually advises disinheritance for any reason.

While halachic estate planning often focuses on the mechanics and halachic validity of an estate plan, the larger question of halachic appropriateness should not be ignored.  This is particularly true in the common situation of a married couple leaving their entire residuary estates to each other.  In most cases, that distribution scheme is halachically problematic, whether or not the will is accompanied by a binding halachic note of indebtedness.

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See The Top 10 Questions & Answers About Wills, Inheritance & Halacha.  If you’re concerned about halacha, you should, at the very least, have a will.

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Last night I listened to a lecture by Rabbi Hershel Schachter on the Halachic Issues of Inheritance. The lecture is an introduction to the major halachic principles regarding wills and inheritance, including halachic estate distribution, whether and when wills are accepted in halacha, bechorah, property deposited with a third party, and dina demalchuta dina.

You can download the lecture here. I haven’t explored the entire yutorah.org website, but there seems to be thousands of lectures on various topics available for download.

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Here’s a quick overview of the issue:

There are two distinct questions regarding the Halakhic status of wills and trusts. First, are wills and trusts recognized as valid instruments by Jewish law? Second, if they are, or if estate plans can be made to be Halakhically valid, should they be used to leave property to someone other than those entitled to inherit under the Jewish Law of Inheritance?

Many, if not most, leading Halachic authorities throughout history consider a will to be an invalid document where it contradicts the order of succession laid out by the Torah. This is because both the will and the Jewish Law of Inheritance become effective at the same instant — the moment the testator (the person making the will) dies. According to these opinions, the Jewish Law of Inheritance prevails and the will is ignored. In fact, according to many opinions, simply executing a will is prohibited as a diversion of assets from the rightful Halachic heirs (the Talmudic prohibition of ha’avarat nahala) in a manner enforceable in a secular court.

A common solution to the problem is for the testator to separately sign a note of indebtedness to the non-Halachic heirs in an amount in excess of the estate. The note states that the debt is satisfied if the halachic heirs accept the terms of the will, essentially forcing the Halachic heirs to choose between the will and the note, with the will obviously being the better alternative for the Halachic heirs. Halacha allows a debtor to create an enforceable debt without an underlying reason for the debt. The note probably has no validity in a U.S. court.

There are many other related Halakhic issues to deal with. Does dina demalkhuta dina (the law of the land is the law of the Torah), itself a complex question, apply to the Jewish Law of Inheritance? While one can distribute estate assets during life by giving gifts, according to many opinions such distributions may be limited to assets already owned by the person making gifts. Furthermore, regardless of whether the methods are Halachically sanctioned, at what point does providing for non-Halachic heirs rise to the level of diversion of assets?

I’d be happy to discuss this topic further, so long as it is understood that there are divergent opinions at every step of the way, and that one must consult a Halachic expert for a practical application of these laws.

Update 5/11/2010: For further discussion of estate planning and the Jewish Laws of Inheritance, see my other blog, Jewish Legal Perspectives, and click on the Estates category (or just click here).