Lesson # 239 (part one) • Laws of the Firstborn Son (Primogeniture)
In England and many other countries which have monarchs, the next ruler is usually decided by the rules of primogeniture, that is the oldest son takes the throne. In halacha, primogeniture means that the estate of the decedent who left sons, the son who is the firstborn takes a larger portion than the other sons.

Firstborn does not merely mean that he is the oldest, for in addition to being the oldest, he must also be the firstborn of the father.

The Torah states (D'varim 21:15-17):

lf a man will have two wives, one beloved and one hated, and they bear him sons the beloved one and the hated one, and the firstborn son is the hated one's; then it shall be that on the day that he causes his sons to inherit whatever will be his, he cannot give the right of the firstborn to the son of the beloved one ahead of the son of the hated one, the firstborn. Rather, he must recognize the firstborn, the son of the hated one, to give him the double portion in all that is found with him; for he is his initial vigor, to him is the right of the firstborn.

It is seen from this that the firstborn has a special portion of the estate of his father, that of primogeniture.

This lesson and the next lessons describe this special portion. I have divided these lessons into several parts, (1) Who is a firstborn? (2) How does he prove he is a firstborn? (3) What portion of the father's estate does the firstborn receive? This last topic deals with those items to which the laws of the firstborn do apply and to which they do not apply. In these lessons, the first born is designated as “Reuven” and the father as “Yaakov”.

Definition of a first born
Primogeniture is the halachic provision whereby a firstborn, if a male, receives a special portion of the estate of his father. For the purposes of primogeniture, the firstborn is the firstborn to the father, whether or not he is also the firstborn to his mother. For example, his mother was married to her first husband and had children with her first husband. The first husband divorced her or he died. She then married Yaakov who had no previous children, and has a child, Reuven, by Yaakov. Such child, Yaakov's first, is Yaakov's firstborn for the purposes of primogeniture, although he is not the firstborn of his mother. (The Torah commands that a firstborn son must be redeemed by paying five silver coins to the kohen (Sh'mot 34: 19). For this purpose the firstborn is the one who is firstborn to the mother, although the son is not necessarily the firstborn to his father.)

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 his father. He receives a portion of his mother's estate equal to that of her other sons.

In order to be the one whom the halacha recognizes as the firstborn, he must be born while the father is still alive. For example, the father died while his wife was pregnant. After the father died, his widow gave birth to twin sons, one of whom was born first. The rules of primogeniture do not apply to him. Or, when it was possible for a man to have two wives, the husband had two wives. When the husband died, both wives were pregnant, and one of them gave birth to a son and then the other gave birth to a son. The rules of primogeniture do not apply to the son who was born first. For the purpose of these laws the word "born" means that his forehead emerged from the womb while the father was still alive.

Yaakov had two wives, Leah and Rachel. Leah conceived first but Rachel gave birth first to a boy, Reuven. Reuven is the firstborn. There is an opinion that if the father was in a coma when Reuven was born, and died without recovering, Reuven is not considered the firstborn for the purposes of these lessons. The verse says that the father "must recognize the first- born" and if he is in a coma he cannot recognize him.

Assume that the first baby born to the father is a toomtoom, a person whose genitals are not visible and whose sex is not (readily) determinable. Although his gender cannot be determined, he is in reality either a male or a female, not a third gender: (There is an opinion in the Talmud that the toomtoom should be considered a third gender.) Since his maleness is not recognizable at the time that he is born, he does not become a firstborn for the purposes of primogeniture. This holds true even if there is a subsequent operation performed on him and it is then revealed that he was a male.

Reuven was the first child born to Yaakov after a prematurely born child to the same father, Yaakov, died within 30 days of birth. The halacha recognizes a premature child to be one born in other than the seventh or ninth month of pregnancy and who does not survive 30 days. Reuven is the firstborn of Yaakov for primogeniture purposes. Or, if a child was born to Yaakov in the ninth month of pregnancy but was dead when its head emerged, and Reuven is the next child born to Yaakov; Reuven is the firstborn for the purposes of primogeniture. If the first child was born in its ninth month and was alive when its head emerged, then Reuven, who is the next born to Yaakov is not considered his firstborn for the purpose of primogeniture.

The firstborn to Yaakov; Shimon was born by a C-section birth, and thereafter Reuven was born through a normal birth. Neither Shimon nor Reuven have the status of a firstborn in accordance with the laws of primogeniture.

Avraham is a proselyte, who before he converted had children with a non-Jewish woman; his firstborn with a Jewish woman after he converts does not have the status of a firstborn regarding primogeniture. The prior children follow the father's status and are his relatives as being non-Jewish because his wife was not Jewish. Since he had children who had the same status as he had, his firstborn child after he converts and has a child with a Jewish mother is not his firstborn child.

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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