The Halachic Ramifications of Wills

Special end of Chanukah special—and chance to give Chanukah gelt to my favorite tzedakah.

Paypal has a new useful feature that you can use to donate money to American Friends of Nimla Tal. This tzedakah distributes all of the money received to situations here in Eretz Yisroel of which I have personal knowledge. Usually, the money is used to pay for therapy. In addition, a special feature, good through the month of December, is that PayPal adds 1% to the amount donated. So, click on www.paypal.me/rabbikaganoff to donate, and you will be given the option to enter your amount. If you enter $100, for example, you  get a US IRS tax deduction of $100, and $101 goes to help the poor in Israel. No money goes to pay salaries or other no expenses.

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Before he embarked on the difficult trip to Egypt at the age of 130 years, no doubt that our forefather Yaakov made sure all his matters were in order. Thus, it is time to study:

The Halachic Ramifications of Wills

Should an observant Jew have a will drafted? What happens if the inheritance dictated by halacha is different from that dictated by civil law? If he already has a will, how can he arrange it so that it can be consistent with halacha? May one distribute one’s estate differently from what the Torah commands? In this article, we hope to clarify these shaylos that affect every one of us.

SHOULD A JEW WRITE A WILL?

The answer to this question depends on what would happen if one leaves no legally binding will. Who will become the legal guardians of one’s minor children? Does one want one’s property distributed according to the civil law applicable where one lives? The truth is that allowing one’s property to be distributed on the basis of civil law will almost always result in someone receiving money that is not halachically his or hers! Thus, by not writing a halachically acceptable will, one may indirectly cause someone to receive stolen property!

The following shaylah that I was asked recently illustrates this problem:

Reuven Stern, who had sons and daughters, did not leave a will, and his property was divided up according to the “law of the land”, without any concern about halacha. One of his daughters asked me the following: Is she allowed to keep the money that she has received? She knows that her father intended to divide his property equally among his children; however, he had never drafted a will.

I told her that she is obligated to tell her brothers that her inheritance money is not halachically hers. If they wish, they can allow her to keep the money, but if she did not tell them, she would violate the Torah prohibition of gezeilah, stealing (MiDor L’Dor pg. 2).

DON’T WE PASKEN THAT CIVIL LAW DETERMINES THE HALACHA IN SUCH CASES BECAUSE OF DINA DIMALCHUSA DINA?

This is an incorrect understanding of dina dimalchusa dina, that the law of the government is binding in halacha. Dina dimalchusa dina requires us to obey rules of the government, such as paying taxes and obeying traffic and safety laws, and prohibits us from smuggling and counterfeiting. Dina dimalchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews. According to all accepted opinions, dina dimalchusa dina does not apply to the laws of inheritance (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26, and by Shach, Choshen Mishpat 73:39).

IS A TYPICAL WILL VALID IN HALACHA?

Shimon had his lawyer draft a will. He instructed his lawyer to have certain bequests made to specific tzedakos, and to divide the rest of his estate equally among all his sons and daughters. Is this will halachically valid? If it is not, what are the halachic ramifications?

According to civil law, a person has the right to choose one’s heirs and thereby to choose to whom one distributes one’s earthly wealth, after one passes on. However, according to the Torah, a person does not have the ability to choose one’s heirs, nor can one give away property after one’s death. When a man dies, the Torah has a formula for distributing his assets.

If a person cannot designate his heirs, does this mean that it is impossible for one to determine who owns one’s assets after one’s passing? No. In this article, we will present different methods whereby one can make a civil will enforceable according to halacha. However, it is important to ask a shaylah to make sure that one’s will is indeed valid, according to halacha.

Here is a case of someone who drafted a will without first asking a shaylah. Mrs. Goldstein promised her nephew Yitzchak that she would support him in kollel. She told Yitzchak that she would make sure that he was provided for, if anything happened to her. Her own children were financially well-established but, unfortunately, non-observant. Any money she left them would be insignificant to them in terms of their own means. By supporting her nephew Yitzchak’s learning, Mrs. Goldstein felt that she would be ensured of a good reward in Olam HaEmes. However, when she had a will drafted, she failed to make any provisions for it to be halachically binding.

After Mrs. Goldstein’s passing, Yitzchak researched the halachos about wills and realized that the property left to him might not be his, from a halachic standpoint. According to many poskim, taking this money without the consent of his non-observant cousins would be stealing, so Yitzchak decided to take no money without his cousins’ willing consent (cf., however, Shu”t Igros Moshe, Even HaEzer 1:104). This consent was not forthcoming, and consequently, Yitzchak was unable to benefit from his aunt’s estate.

Unfortunately, even frum attorneys are often unaware of the halachic ramifications of drafting a will. Mrs. Goldstein’s estate could have been divided according to her wishes, if she or her attorney had only consulted a rav.

ONE METHOD OF MAKING THE WILL EFFECTIVE

One method of making a civil will halachically effective is to have ownership of the property transferred while the testator (the person making the will) is still alive. Thus, there is no need for the beneficiary of the will, called the legatee, to be a halachic heir since he/she is receiving ownership of the property as a gift, not as an inheritance.

However, most people do not want to give away all their properties until their last moment, since they may still have a need for them. Therefore, the date that the gift takes effect is delayed until immediately before the testator passes away. Thus, the testator may still use all his assets, without any hindrance, until the point at which he no longer needs them.

Based on the above, a will can be rendered halachically effective by making a kinyan that transfers assets to the legatee. There are many acts of kinyan recognized by halacha that transfer ownership. For the purposes at hand, the simplest kinyan is what is usually called kinyan sudar, the same type of kinyan that is used to authorize one’s rav to sell chametz. The testator lifts up a pen or any other utensil owned by someone else which thereby transfers the ownership of the estate to the beneficiaries of the will.

Although the act of kinyan is performed at the time the will is signed and witnessed, its effective date is delayed until shortly before the testator’s death. At that moment, it takes effect automatically, because of the kinyan that was performed previously. Thus the legatee will not own the legacy (the property given away in the will) until a few moments before the testator passes away.

Making the will halachically effective by using a kinyan does not require making any change in the will itself. After the will is drafted, one renders it halachically effective by making the kinyan described above.

Although technically not required, it is advisable to have the kinyan witnessed by two adult males, who sign a statement that they observed the kinyan. This statement can then be filed together with the will. Otherwise, halachic heirs can protest that no kinyan was made and refuse to hand over properties.

Although the above method is halachically binding, it has several drawbacks.

According to halacha, one can transfer property only if it already exists and is already owned by the person transferring it. Furthermore, one can only transfer property to someone who is already born. Thus the kinyan will transfer only property that the testator owns at the time that it is made, and will be effective only for legatees who are already born.

Since people generally purchase new properties and investments, earn more money, and include as yet unborn children and grandchildren in their wills, the kinyan should be periodically renewed. Although this is possible, most people generally forget to take care of it.

A more serious problem is that many of the items included in most people’s portfolios, such as bonds, bank deposits, and cash, are neither transacted according to halacha via kinyan sudar, nor through most other standard kinyan methods (Choshen Mishpat 203:1; 66:1). Thus, although the kinyan will work to transfer to the legatee real estate, ownership in businesses, chattel, and stocks, a significant percentage of the assets may not have been transacted in a binding way. As a result, the halachic heir could claim that the legatee did not acquire these items, and therefore that they are not included in the will according to halacha.

WHY ISN’T THE WILL VALID IN HALACHA BECAUSE OF THE MITZVAH TO FULFILL THE WISHES OF THE DECEASED?

It is true that there is a halachic principle called mitzvah l’kayeim divrei hameis, which literally means that it is a mitzvah to fulfill the directives of a deceased person. Thus, it would seem that the heirs are obligated to follow the directives of the will and distribute the property according to the instructions of the deceased.

However, the principle of mitzvah l’kayeim divrei hameis is extremely limited in its application, as we will explain. Relying on mitzvah l’kayeim divrei hameis does not guarantee the fulfillment of the terms of the will, for several reasons. Firstly, the Shulchan Aruch rules that mitzvah l’kayeim divrei hameis applies only when the property is handed over to a third party for the purpose of fulfilling the testator’s instructions at the time the instructions are received (Choshen Mishpat 252:2).

If this condition is not fulfilled, the heirs are not obligated to carry out directives of the will. Obviously, the implementation of these conditions is impractical in the vast majority of wills. Furthermore, even if every condition is fulfilled, if the heirs sell the property before the legatee receives it, the legatee will have no halachic recourse to claim his property (Rama ad loc.). In essence, mitzvah l’kayeim divrei hameis is a mitzvah that the heirs should perform, but it is not binding on them.

Furthermore, according to many poskim, mitzvah l’kayeim divrei hameis applies only if the instructions are given directly to the halachic heirs, which is not typical in most wills (Shach, Choshen Mishpat 252:7). Thus, mitzvah l’kayeim divrei hameis is not an effective means of forcing the halachic heirs to fulfill one’s will.

CAN’T THE TESTATOR TRANSFER THE PROPERTY THROUGH THE LAW OF METZAVE MACHMAS MISAH?

The words metzave machmas misah are the approximate equivalent of the English term “last will and testament,” meaning the instructions made by the testator for the distribution of his assets upon his passing. However, according to most poskim, metzave machmas misah has halachic validity only if made by a shechiv meirah, a deathly ill person (Rema, Choshen Mishpat 250:25). Thus, according to most opinions, it will have no validity in most contemporary wills that are drafted when the testator is healthy.

There is a minority opinion that metzave machmas misah takes affect even for a healthy person, provided he gives away all his property (Mordechai, Bava Basra #591). Based on this minority opinion, some poskim rule that if the legatees have already received the property, they may keep it (Gesher HaChaim 1:6, see Shu”t Maharsham 2:224). If faced with this question, one should ask his rav a shaylah.

DOES USING A TRUST OBVIATE THESE YERUSHA PROBLEMS?

I have seen poskim recommend the use of trusts to avoid some of the problems we mentioned above. However, I do not see any advantage in using a trust over simply making a kinyan. In the cases where the kinyan will not work, the trust will not work either, and the trust can create problems that the kinyan does not. Therefore, using a trust to assure that the will functions according to halacha is usually not warranted.

A MORE EFFECTIVE APPROACH – CREATING AN INDEBTEDNESS

There is a tried and true method that has been used for hundreds of years to guarantee that one’s will is upheld. The testator creates a large, theoretical indebtedness on his properties in favor of the beneficiaries of the will. This means that he creates a lien on all his property that is payable to the intended legatee, who is not a halachic heir. (In halacha, a person can create indebtedness against himself and against his property, even if there is no preexisting debt or obligation.) The debt the testator creates should be much greater than what he actually expects the legatee to receive, and may be larger than he estimates the value of his entire estate.

There is one important condition made on this debt – that it will be null and void if the heirs honor the conditions of the will. However, if the heirs refuse to honor the will, the lien becomes payable, thus depriving them of their inheritance; instead, the estate, or a significant part of it, is awarded to the legatees as payment of the debt. In reality, the indebtedness is never really used; its sole purpose is to enforce the terms of the will.

An example of how this method works will explain it better. Using our earlier examples, Reuven Stern wanted to leave property to his daughters, and Mrs. Goldstein wanted to leave property for her nephew. In both instances, the testator failed to arrange clear ownership of the legacy for the intended legatee.

What the testators could have done is to create a large, personal debt against their property to the benefit of the intended non-heir legatee. Thus, Reuven would have created a large indebtedness against his own property for the benefit of his daughters, and Mrs. Goldstein would have created one for her nephew. A condition would be placed on this debt that it is null and void if the conditions of the will are met and the heirs, in this case the sons, do not contest the will.

Both Reuven and Mrs. Goldstein would also have left a small but respectable legacy for their sons, something they should have done anyway, as will be explained later.

When the testator’s will is executed, the sons, who are the halachic heirs, have the option to ignore the terms of the will. However, by doing so, the estate now owes the full indebtedness. The result is that the sons will end up with no inheritance at all, since the debt might be greater than the entire estate. Thus, it is in the heirs’ best interest to obey the will, and at least receive the small inheritance specified for them.

Although this method may seem like a modern gimmick, it has been in use for hundreds of years. It was commonplace to write a halachic will to provide daughters with part of the inheritance together with their brothers. The father achieved this by creating a lien against his own property for an amount of money that made it worthwhile for the sons to fulfill the conditions of the will (see Rama, Choshen Mishpat 281:7).

It should be noted that because of reasons beyond the scope of this article, the indebtedness made against a wife’s properties would not be valid (see Kesubos 78b; Even HaEzer 90:9). However, the method of creating an indebtedness can still be used by placing the lien for the wife’s will against her husband’s properties. For this reason, when a couple has their wills drafted, the indebtedness for both of their wills should place the conditional lien against his estate, not hers. (This approach is suggested and described in detail by Rav Feivel Cohen in his sefer MiDor L’Dor).

IS IT PERMITTED TO DISTRIBUTE ONE’S ESTATE DIFFERENTLY FROM WHAT THE TORAH INSTRUCTS?

The Gemara tells us that Shmuel instructed his disciple, Rav Yehuda, to avoid becoming involved in situations where the Torah’s laws of inheritance would be overruled, even to transfer property from an evil son to a good son, or from a son to a daughter (Bava Basra 133b; Kesubos 53a).

Does this imply that all property should be inherited only by the halachic heirs? If this is so, why was there a widespread custom of providing daughters with an inheritance to which they are not entitled according to Torah law?

There are several approaches given to answer this question.

Some poskim rule that it is permitted to give away a large part of one’s estate, provided the testator makes certain that each of the heirs receives at least some inheritance (Tashbetz 3:147; Ketzos 282:2; see Shu”t Chasam Sofer, Choshen Mishpat #151 who disagrees).

Others explain that one should provide inheritance for one’s daughters as a means of encouraging their shidduchim, attracting potential husbands by the expectation that they will eventually receive an inheritance (Shu”t Maharam Mintz #47, quoted by Nachalas Shiva 21:4:2).

Others contend that when the accepted practice is that all children inherit equally, one should follow this custom to make sure that a machlokes does not result from unrealized expectations (Gesher HaChaim, 1:8; cf. MiDor L’Dor pg. 31 who seems to disagree).

Gesher HaChaim records a story of a great talmid chacham who wanted his estate divided exactly as the Torah instructs. Thus, he arranged legally that his bechor should receive a double portion, and that only his sons should receive inheritance and not his daughters. Unfortunately, the result of this distribution was a legacy of machlokes that created a tremendous chillul Hashem. For this reason, Gesher HaChaim strongly recommends that a person divide his estate according to what is the expected norm in his community.

It is important to realize that legal rights and responsibilities are never governed by secular law. A Torah Jew realizes that Hashem’s Torah is all-encompassing, and that every aspect of one’s life is directed by Torah. Thus all financial aspects of our lives are also governed by halacha, and one should be careful to ask shaylos about one’s business dealings.

 

When There Is a Will, the Relatives May Complain

Yonasan, who was originally adopted by non-observant parents, called me with the following shaylah:

“My parents, meaning the couple who adopted me, eventually divorced, and later my father remarried, although there was a halachic problem with his second marriage. My adoptive father was a kohen, and his second wife, Martha, was a divorcee. Recently, my father passed away. My father’s final will, which was drafted when he was ill and very dependent on Martha, was completely different from his previous will, and left virtually all his property to her. Uncle Jack, my adoptive father’s brother, is very upset about the will, believing that this was certainly not my father’s intention, and that it can be overturned in court. This would make me the legal heir to my father’s estate, although halachically, I am not his son. Uncle Jack wants to file a lawsuit over the matter; however, he has no legal recourse to do so, since the civil law does not consider him my father’s heir. May I file a lawsuit to overturn the will?”

This shaylah is indeed as complicated halachically as it sounds, and actually involves three different areas of halacha:

I. Who is the heir?

II. What is the halachic status of a will?

III. May one file the lawsuit in secular court?

In addition, there is a fourth halachic issue that must be addressed, a question of yibum, which I will discuss later.

I will explain each area of halacha mentioned above in order to explain the procedure that I suggested that Yonasan follow.

I. Who is the heir?

Although civil law considers Yonasan the child of his adoptive parents for all matters, including his being their legal heir, the adoption did not make him their biological son. Indeed, the Gemara states that someone who raises a child is considered as if he had given birth to him;[1] however, the adopted child does not inherit, unless he receives the property as some form of gift, as I will explain.

Thus, although Yonasan is his father’s legal heir (from a civil law perspective, if we ignore the will), halacha does not consider him an heir automatically, unless his father gave him the property in a halachically correct will. Since the existing will made other accommodations, Yonasan receives nothing from his father’s estate halachically, neither as an automatic heir nor as the receiver of gifts through his father’s will. Thus, Yonasan cannot make a financial claim against his stepmother for his father’s estate, since it does not belong to him. If the will is valid, then the property belongs to Martha, his stepmother. If the will is invalid, the property belongs to Uncle Jack.

Why Uncle Jack?

If a man dies without biological children and makes no halachic provisions for his estate, then his closest heir is his father, who, in this case, is already deceased. The next closest relative is any surviving brother. In this case, there is one biological brother of the deceased, Uncle Jack. Thus, he is the halachic heir of Yonasan’s father, and if indeed the will is halachically invalid, the property halachically belongs to him, although he may not be able to take possession of it according to civil law.

Halachically, a woman does not inherit from her husband as next of kin. Instead, the Torah gives her the rights of the kesubah, provides that she may live in her late husband’s house and guarantees her income and support from his property. Martha is entitled to these financial rights if she was halachically married to Yonasan’s father, even if the marriage fell into the category of a halachically prohibited marriage. (One method whereby Martha and Yonasan’s father could have been halachically married in a prohibited marriage would be if they had deceived an Orthodox rabbi, dishonestly getting his agreement to perform their ceremony. There are others.) Thus, if Martha proves that she was halachically married to Yonasan’s father, she will be entitled to this support, even though she was a divorcee and he was a kohen.[2]

II. Is the will valid?

According to civil law, a person has the right to choose his heirs and thereby to choose to whom he distributes his earthly wealth after passing on. However, according to the Torah, a person does not have the ability to choose his heirs, nor can he arrange to give away property after death. When a man dies, the Torah instructs us how to distribute his assets, through the laws of yerusha.

How can someone leave his property to his adopted child?

There are methods whereby one can transfer his property to his adopted child, or to anyone else, for that matter, who is not a halachic heir. One method is to draw up a will, and then make a kinyan that transfers possession of the bequeathed property to the beneficiary of the will. (I mention this method as a possible illustration, since it does not work in all situations.) This can be done in a way that the person wishing to bequeath his property maintains ownership over it in the meantime and leaves him the right to change his bequest later. Some poskim, albeit a minority, contend that a legally valid will alone constitutes a kinyan. These authorities reason that arranging a legally valid will, knowing that the government will transfer property as a result, is halachically equivalent to making a kinyan.[3] However, most poskim maintain that a standard civil will is not halachically valid.

Yonasan’s father was not observant and did not have his lawyer make the will halachically valid. (Unfortunately, many observant Jews do not attend to this important matter either. Just as it is important for a person to have a will drawn up, it is important to make sure that it is halachically valid.) Therefore, many poskim would consider Uncle Jack to be the halachic heir of the estate, yet he cannot file a civil suit concerning the property, since he is not an interested party according to civil law. But before we even get to this step in the discussion, we need to discuss whether the Torah permits Yonasan or Uncle Jack to sue in civil court.

III. Arka’os, the prohibition against filing a suit in a secular court.

A Jew may not litigate against a fellow Jew in civil court,[4] even if both parties agree.[5] This is known as the prohibition against using arka’os. Someone who uses court systems not sanctioned by the Torah performs a chillul Hashem, a desecration of G-d’s Name, because he demonstrates that he feels that G-d’s Torah cannot resolve his financial matters.[6] In the words of the Rambam,[7] “Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu.”[8] Someone who brought litigation to a secular court is invalidated from being a chazzan for Yomim Nora’im.[9] In addition, he will probably transgress the violation of stealing (gezel), since the property he receives is not his according to halacha.

What if the Other Party Refuses to Go to Beis Din?

This problem is, unfortunately, neither uncommon nor recent, and apparently occurred even at the time of the Gemara.[10] If this happens, the halachically correct procedure is for the plaintiff to have beis din summon the defendant. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to sue in civil court.[11] Under these circumstances, the plaintiff has not violated the prohibition of going to arka’os, since he acted according to halacha.

(It should be noted that even if someone is authorized to sue in civil court, he is only entitled to receive what halacha entitles him. It could happen that the civil court awards him more money than he is entitled to according to halacha. Therefore, he should ask a posek after winning the litigation how much of the award he may keep. The balance he would be required to return to the other party.)

Applying these rules to our case means that Uncle Jack may file a suit in beis din against Martha. Although Uncle Jack would like Yonasan to sue in civil courts, Yonasan may not sue according to halacha for two different reasons:

(1) One may not sue in civil court without permission from beis din.

(2) Yonasan has no halachic grounds to claim his adopted father’s estate since he is halachically not an heir.

Does this mean that this was the end of the case?

No. Yonasan explained to Uncle Jack the halachic background to the shaylah. Uncle Jack feels strongly that Martha took unfair advantage of his ill brother, which is the reason why he and his attorney feel that the will can be easily overturned in civil court. Uncle Jack then asked Yonasan if there is any way that Yonasan could proceed with the claim.

Harsha’ah

Enter harsha’ah, which is the halachic equivalent of a power of attorney, into the picture. A harsha’ah allows someone who is not an interested party in the litigation to sue as if he is an interested party. In this instance, Uncle Jack, as the halachic heir, can authorize Yonasan by means of a harsha’ah to sue Martha in beis din. If Martha ignores the summons or indicates that she will not respond to it, the beis din authorizes Yonasan and Uncle Jack to pursue the matter in civil court. The court will not accept Uncle Jack as a plaintiff against the will, since they do not recognize him as the heir. Although the court does not recognize Uncle Jack’s claim, Yonasan may now sue in civil court, based on the beis din’s authorization. Halachically, the basis of the civil suit is to save Uncle Jack the money that is his, even though neither the civil court nor Uncle Jack himself accepts that the money is his.

At this point in the discussion, Yonasan e-mailed me a further question:

“Dear Rav Kaganoff,

“In the event that my uncle does choose, with permission from a beis din, to sue my father’s widow in civil court, *should* I or merely *may* I act on his behalf?”

Indeed, this is a difficult question. In general, saving someone’s money is a mitzvah, and therefore, if someone sued in beis din and was ignored, it is a mitzvah to help him save his money in civil court, providing that this approach was properly authorized by beis din. This act of chesed is included under the mitzvah of hashavas aveidah, returning a lost object to its proper owner.

In our instance, I was less certain if this is considered hashavas aveidah, since Uncle Jack does not consider the money his and is only planning to give it to Yonasan. Is Yonasan required to assist in helping Uncle Jack claim the money, knowing that Uncle Jack will probably assume that it is Yonasan’s and give it to him? Furthermore, since there might be poskim who feel that the money is legitimately Martha’s, one could certainly rely on their opinions to rule that it is not a requirement for him to be involved in the litigation. Thus, there are two different considerations as to why he may not be considered “saving someone’s money”:

(1) Can you say that he is saving someone else’s money, when that person intends to give it to him?

(2) According to some opinions, the money may not be Uncle Jack’s, but Martha’s. Although he is permitted to follow the opinion that the money is Uncle Jack’s, is he required to?

Another consideration: Chalitzah

At this point in the discussion, I introduced a new topic to Yonasan, that of the mitzvah of chalitzah. This requires some explanation. If a man dies without having biological children, there is a mitzvah for his brother to perform a procedure called chalitzah, which permits the widow to remarry. In addition, the chalitzah is a tremendous tikun neshamah for the departed. The mitzvah applies even if the widow is no longer of child-bearing age, and even if the couple married after she was beyond child-bearing age.

Many people do not realize that, if a couple has adopted children, but no biological children, the mitzvah of chalitzah still applies. Since Yonasan’s father had no biological children, his widow (assuming that they were halachically married, as she claims) is a yevamah, who requires chalitzah from Yonasan’s uncle to permit her to remarry.

I quote my letter to Yonasan:

“If your father’s marriage to his last wife was halachically valid, then there is a requirement/mitzvah for your uncle to perform chalitzah,[12] even if your father’s widow has no intention of remarrying and is not observant.”

Yonasan replied:

“I’m surprised it didn’t occur to me.  Question, though — even if they did get married with chuppah and kiddushin, she was a grusha, and he a kohen, so the marriage was forbidden.  He claimed to have asked a rabbi, who permitted the marriage on the basis that since he was disabled, he would not be allowed to perform the avodah, even if the Beis HaMikdash was standing. I did not think this is correct [indeed it is not], but I didn’t see any point in making an issue of it.  Was he right?  Assuming that his marriage was halachically unacceptable. Would that in any way impact on chalitzah?”

To which I replied:

“There is absolutely no halachic basis to any of the reasons he told you to permit this marriage. I presume that he mentioned these reasons to relieve his own conscience, and that he never asked a shaylah; halachically, he was prohibited from marrying a divorcee.

“A halacha-abiding rabbi would not perform such a ceremony, unless he was unaware either that your father was a kohen or that his wife was a grusha. However, even if there had been no proper halachic ceremony, they might have been considered married according to halacha, particularly since they considered themselves married. Thus, although this marriage was forbidden, there may be a requirement to perform chalitzah. The mitzvah of chalitzah applies even in the case of a kohen who marries a divorcee.[13] Is there anyone where they live knowledgeable enough to arrange this for them?”

Yonasan responded to my inquiry:

“There are some very prominent talmidei chachomim living near where both my uncle and my stepmother live.  However, they live a considerable distance from one another. I doubt that the widow is aware of the need for a chalitzah; I also doubt that she’ll object to it if it’s made easy for her. My uncle is, however, totally irreligious. How would I get him to agree to it and to travel the distance involved? He is unlikely to drop everything and fly to where she is to perform what he would see as an unimportant religious ceremony to help out a woman with whom he is upset.  What if he were to appoint someone else as a shaliach over the phone?  Would that be acceptable?”

To which I responded,

“Unfortunately, chalitzah cannot be performed through shelichus (agency). It sounds as if the most likely way for this to happen is to wait until a time that you know that they will be near one another  and then plan carefully how to present it to them. Alternatively, simply mention to them that chalitzah is a big tikun neshamah for your father, whom they both liked (I presume), and ask if they can keep it in mind in future travel plans.

“By the way, the mitzvah is your uncle’s mitzvah to perform, not hers.”

As of this writing, I do not know if Yonasan decided to proceed with the litigation over the will, and I presume that no action has resulted concerning the chalitzah. However, this situation affords us the opportunity to discuss halachos with which many people are unfamiliar, and it provides a tremendous opportunity to make people aware of a number of different mitzvos.

It is important to realize that legal rights and responsibilities are never governed by secular law. A Torah Jew realizes that Hashem’s Torah is all-encompassing, and that halacha directs every aspect of one’s life. Thus, halacha governs all financial aspects of our lives, and one should be careful to ask shaylos about one’s business dealings.

Indeed, through this entire halachic conversation, I was exceedingly impressed by Yonasan’s ability not to be swayed by financial considerations, but to be certain that what he did would be the perfectly correct approach halachically. In fact, he was shortly thereafter awarded a tremendous financial windfall – no doubt, for his adherence to halacha, despite whatever financial temptation existed.


[1] Megillah 13a; Sanhedrin 19b

[2] Mishnah Kesubos 100b

[3] Shu’t Igros Moshe, Even HaEzer 1:104

[4] Gittin 88b

[5] Ramban, beginning of Parshas Mishpatim

[6] Midrash Tanchuma, Mishpatim #3

[7] Hilchos Sanhedrin 26:7

[8] See also Rashi’s comments on Shemos 21:1

[9] Mishnah Berurah 53:82

[10] Bava Kama 92b, as explained by Rosh

[11] Shulchan Aruch, Choshen Mishpat 26:2

[12] Mishnah Yevamos 20a

[13] Mishnah Yevamos 20a