By: Raphael Grunfeld.
Why is it that the Jewish Law of Inheritance appears, in certain situations, to disinherit women?
The Jewish Law of Inheritance provides that those heirs, whom the Torah deems to be closest to the deceased, inherit first. The Torah deems the deceased’s children to be closer to the deceased than the deceased’s parents or siblings. Accordingly, if a daughter is the only child of her deceased father, she, and not her father’s siblings or parents, inherits his estate. If, however, she has a brother, he inherits the entire estate and the daughter inherits nothing. A husband inherits the estate of his wife but the wife does not inherit the estate of her husband. A son or daughter (who has no brothers) inherits the estate of their mother, but a mother does not inherit the estate of her children.
Before attempting to address this question, one must be prepared to come away with an incomplete answer. This is because the Torah refers to the Laws of Inheritance as Chukat Mishpat. This term “Chukat Mishpat” is an oxymoron. The term “Chok,” or “Chukah,” means a decree that we cannot fully understand. Yet we adhere to it because it is the will of God. The term “Mishpat,” means a law that we are able to understand and probably would have legislated ourselves had God not legislated it. A typical example of a “Chok,” is the prohibition against wearing Sha'atnez, clothes made of wool and linen. A typical example of a “Mishpat” is the prohibition against murder. The Laws of Inheritance are a “Chukat Mishpat,” both comprehendible in part and incomprehensible in part. This is not so strange as it may seem. On the one hand we are disposing of our own property and have a right to say who will inherit us. On the other hand, at the time of death, the property is no longer ours to dispose of and a higher authority, the Torah, decides who will inherit us.
In attempting to explain the phenomenon of the Law of Inheritance as it applies to the woman, two principles should be borne in mind. The first principle is that the financial family unit in Jewish law is Patrilinial. The children in the family unit look to their father for financial support. The father’s property is the “Family Bank.” It will be drawn upon to support his children. It may also be used to support his sons, their wives and their children, if the need arises, when his sons get married. The father does not need to worry about his daughters when they marry because the “Family Bank” of the husband’s family unit will support them. Now, if the daughter inherits her father and then marries, then upon her subsequent death, the assets she received from her father’s estate will be inherited by her husband, if he survives her, or by her children. As a result, some of the assets of her father’s “Family Bank” will be diverted away by the daughter to her husband’s family unit. In order to prevent such diversions, the Torah restricts the right of the daughter to inherit the estate of her father in situations where an equally close heir, such as a son, survives the father. Accordingly, if the daughter has brothers, she does not inherit her father’s estate at all. If, however, she has no brothers, she will inherit her father’s estate, even though assets from the Family Bank will be diverted, because she is the closest surviving heir of her father.
Raphael Grunfeld’s book, Ner Eyal on Seder Moed is available now at OU.org and at your local Judaic bookstore. His new book, Ner Eyal on Seder Nashim & Nezikin will be available shortly. You can reach Raphael at firstname.lastname@example.org.