Lesson # 241 (part three) • Laws of the Firstborn Son (Primogeniture)

In last week’s lesson we discussed the definition of a firstborn and how one proves that he is the firstborn. We now discus the portion received by the firstborn.

Assume that the father, Yaakov, died and there was a firstborn, Reuven. In most situations Reuven receives a double portion of the estate of the father. The estate of the father is divided into as many parts as their are sons plus one more (n+l), and the firstborn receives one portion and then all of the brothers including the firstborn receive one of the remaining portions. Assume that there are three sons, one of whom is Reuven the firstborn. The estate is divided into four parts (3+1) and the firstborn receives one part (one-quarter) and then he and the other two sons equally share the remaining three quarters. The firstborn thus receives one-half of the estate and the other two sons receive one-quarter each. It has been said that the firstborn receives two portions and then the remaining sons divide the balance of the estate.

In most instances this is correct. Thus when there are three sons the estate is divided into 4 parts and the firstborn receives 2 parts and the other sons 1 part each. In this situation the result is the same. However, as will be seen below, there are times when this is not accurate. I have thus set the halacha to be that the firstborn receives one portion and then he and the remaining sons divide the remaining portions equally. Assume ten sons, including Reuven, the firstborn. The estate is divided into 11 portions (10+1); one-eleventh is given to Reuven, Then the remaining 10 elevenths are divided among the ten sons including Reuven.

Reuven thus receives two- elevenths and the other nine sons receive one-eleventh each.

In determining how many sons are to be included in the calculation for the primogeniture portion, only those sons who were born prior to the death of the father are included; sons born during the father's lifetime but who predeceased their father are included. Yaakov had three sons, Reuven (the firstborn), Shimon, and Levi; Levi predeceased Yaakov, leaving no children. When Yaakov dies his estate is divided into four parts (3+1), and Reuven the firstborn receives one part (one-quarter) as his primogeniture portion. The remaining three-quarters is divided between Reuven and Shimon, each receiving 3/8 of the estate. Reuven thus receives 5/8 of the estate.

Yaakov had two sons, Reuven, the firstborn, and Shimon, both having predeceased Yaakov; Reuven left a daughter, Sarah, and Shimon left a son, David, Sarah inherits two-thirds of Yaakov's estate and David inherits one-third. Yaakov's estate is divided into three parts (2+1), Two portions are given to Reuven, and since he is not alive, his share goes to his heir, Sarah, The remaining one-third goes to Shimon, and since he is not alive, it goes to his heir, David.

Any sons born after the father's death are not included in this calculation regarding the primogeniture portion, but such after- born sons are included in the calculation in dividing the balance of the estate,

It was stated above that the relationship of primogeniture applies even if the firstborn and/or the other sons do not survive their father. Some examples: Yaakov had three sons, Reuven (the firstborn), Shimon, and Levi, All three died before Yaakov; Reuven left two surviving daughters, Leah and Rachel; Shimon left two surviving sons, Moshe and Aaron; Levi left three surviving sons, Yissachar, Dan, and Naftali, and a daughter, Sarah. All of these grandchildren were alive when Yaakov died. Since there were three sons, the estate is divided into four equal portions (n+l). Leah and Rachel, the daughters of Reuven, inherit one-half of the estate or one-quarter to Leah and one-quarter to Rachel; Moshe and Aaron, the sons of Shimon each inherit one-eighth of Yaakov's estate. Yissachar, Dan, and Naftali each inherit one-twelfth of the estate.

The firstborn receives a primogeniture share only if he is the firstborn to the father and only from the father’s estate. He does not receive a primogeniture share of his mother’s estate even if he is her firstborn and also the firstborn of the father. He receives a portion of his mother’s estate equal to that of the other sons.
Real estate owned by the father at the time of his death is included in the primogeniture portion even if it is mortgaged. However, real estate mortgaged to the government for nonpayment of taxes that the government will sell is not included in the primogeniture portion.

Personal property of the father is included in the primogeniture calculations. This is true even if the personal property is held for the father by others. Business investments and shares owned in business are part of the primogeniture portion. However, wages due to the father or rent due to the father are not deemed to be in his possession and are not subject to the laws of primogeniture.

If Reuven, the firstborn, sells his primogeniture portion before he receives such portion, the sale is valid. The reason is that the firstborn has a vested interest in the primogeniture portion even before the division of the property is made.

The firstborn may waive the primogeniture portion by an express waiver, or his waiver may be inferred by his conduct. For example, if only a portion of the father’s assets have been distributed to the son and the firstborn did not take his primogeniture portion, he is deemed to have waived his right to receive his primogeniture portion on the rest of the estate. This applies if the firstborn does not protest or state that he intends to receive his primogeniture portion; but if does protest in the presence of witnesses he is not deemed to have waived his right to receive the primogeniture portion. In each situation it is for Beth Din to determine the adequacy of the protest.

If the estate owes debts, the firstborn must pay a double portion of the debt as compared to the portion paid by the other sons. If the firstborn waives his primogeniture portion, he need pay only the same portion of the debt as any other son. There is a difference of opinion as to whether an heir who is not a firstborn can waive his inheritance and avoid paying his father’s debts to the extent of the inheritance.

IYH in the next lesson we begin a discussion of the father declaring who are and who are not his heirs.

The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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