INHERITANCE AND TAKING THE PLACE OF THE DECEASED 

HaRav Aharon Lichtenstein

Introduction

            Generally speaking, the world of Halakha can be divided into two realms:

1)        Ritualistic commandments, prohibitions and practices; these have their foundation within Halakha, rather than the outside world.

2)        Universal directives; in the realms of Choshen Mishpat and Even Ha-ezer, Halakha proposes solutions and models for problems that arise in every society.

The laws of inheritance fall into the second category, as every society must deal with the question of how to dispose of a person's assets following his or her death.  Kohelet notes that "there is no power on the day of death" (8:8), and in certain situations, death nullifies proprietary rights.  If a convert dies without heirs, his or her property is regarded as ownerless; slavery is canceled in part at the time of death; etc.  The Gemara in Bava Batra (110a-b) examines the law of filial inheritance:

From where do we know this?  It is written: "If a man dies [and has no son, then you shall cause his inheritance to pass to his daughter]" (Bamidbar 27:8) — the reason is because he has no son, but if he has a son, the son takes precedence. 

Rav Pappa said to Abbayei: “Might it not be inferred that if there is a son, the son inherits; if there is a daughter, the daughter inherits; if there are both a son and a daughter, neither inherits?” 

But who then should inherit?  Should the town collector inherit!

            Though Rav Pappa's proposal seems to lack all logic, this is not the forum to discuss it.  What is important for our purposes is that the Gemara discounts the possibility that neither the son nor the daughter should inherit the deceased: “But who then should inherit?  Should the town collector inherit!”  As stated above, there are cases where ownership is canceled totally and the assets are expropriated, but the Gemara does not consider such a possibility.  A situation in which a person dies and his property becomes ownerless is liable to lead to anarchy!

            In the world of economics at large, there are many who have reservations about the idea of inheritance.  In the United States, a heavy inheritance tax is imposed on large estates.  Many economists have difficulty with the concept of inheritance, through which large sums of money are automatically transferred from one person to another, but even they do not altogether reject the idea of inheritance.  Without a doubt, then, inheritance is a universal concept.

            At the end of the section dealing with inheritance, the Torah says:

And it shall be to the children of Israel as a  statute of justice, as God commanded Moshe. 

                                                 (Bamidbar 27:11)

            It is not clear whether "a statute of justice" refers to a halakhic rule like all the laws of the Torah or to a universal principle reflecting life in the real world; in any event, Halakha establishes that there is a clearly defined "order of inheritance," as delineated in the Mishna (Bava Batra 8:2).  This hierarchy of succession is automatic: upon death the estate passes automatically and immediately to the ownership of the heirs.  In contrast to this order, the following laws deal with a different model, that of a person "causing inheritance:" in certain cases, a person has the authority to assign his estate as he sees fit, through mattenat shekhiv mera, "the gift of the critically ill," and the like.

            There is then a fundamental difference between natural succession and artificial succession.  There are additional distinctions in the framework of natural succession: between direct inheritance (son, daughter, brother, sister) and indirect inheritance, through someone who should have been the heir, but is already deceased; between the inheritance of a husband and a wife, on the one hand, and the inheritance of blood relatives, on the other; between the inheritance of a firstborn and the inheritance of the rest of the brothers.

Taking the Place of the Deceased

            This shiur will focus on the relationship between monetary inheritance and the status of the heir as taking the place of the deceased.  It is possible to relate to the process of inheritance in two different ways:

1)        Property moves from the possession of one person to the possession of another; or

2)        The assets stay where they are, and it is the heir who "moves," taking the place of the deceased.

The first approach seems to be the simple understanding of this mechanism.  The Gemara in Bava Batra (147a) states explicitly:

Rav Zeira said in the name of Rav: “What is the source in the Torah for mattenat shekhiv mera?  For it is said: 'Then you shall cause his inheritance to pass to his daughter' (Bamidbar 27:8) — there is another passing like [inheritance], and what is it?  It is the gift of the critically ill.”

It is obvious that a person cannot transfer his personal status by way of mattenat shekhiv mera, and thus it seems that we have here a clear source for the transfer of an estate without a bestowal of personal standing.  The Gemara concludes that mattenat shekhiv mera is only a rabbinic law, but it does not appear to negate the idea of inheritance as a transfer of the estate.

In order to examine the nature of the second approach, we must ask ourselves whether there are other areas in which the heir comes in place of the deceased and substitutes for him.  Of course, even if we find such realms, this does not necessarily mean that the same applies to inheritance, but we still need to examine whether such an idea exists at all.

One of the most interesting vagaries of kinship is the responsibility to avenge the killing of a close relative.  In Hilkhot Rotzei'ach U-shmirat Ha-nefesh (1:2), the Rambam links the criteria of inheritance to this criminal law, stating, “Whoever is fit for inheritance is the blood-redeemer.”

            The Rambam does not explain whether he is referring to only direct or even indirect heirs, and the Acharonim explore this issue.  Regardless, it is clear from the Rambam that inheritance is not only a monetary matter; it has ramifications on other areas, e.g., the law of the blood-redeemer.  We see then that there exists a certain relationship between the murder victim and his family, which on the one hand initiates financial processes in the framework of the laws of inheritance, while on the other hand, it requires the heir to kill the murderer.  One might argue that since the relative inherits the property of the deceased, he is obligated to avenge his blood.  This understanding, however, is difficult, and it makes more sense to say that there exists a fundamental and essential relationship between the deceased and his relatives, which finds expression in various realms, the financial and the criminal.[1]

            Another instance in which we refer to the laws of inheritance is that of public office.  The Rambam in Hilkhot Melakhim 1:7 says as follows:

As soon as the king is anointed, he acquires the office for himself and for his children forever.  The right thereto is transmitted as a legacy, as it is says (Devarim 17:20): "To the end that he may prolong his days in his kingdom, he and his children, in the midst of Israel…”  Whoever is the first in the order of inheritance is first in the order of succession to the kingship: the older son takes precedence over the younger one.

However, it is not only the office of king, but rather all appointed positions which the father holds pass to his son and his son's son in perpetuity, provided that the son is entitled to fill the office by virtue of his own wisdom and piety.

            One might argue that public office is also a type of asset that a person owns; therefore, transferring an office is essentially a transfer of ownership.  Alternatively, it may be suggested as above, that the relationship between the heir and the decedent puts the inheritor in the shoes of the deceased, even in situations that do not involve money or property.

            There is yet another area regarding which there might be a relationship between the heir and the decedent.  The Gemara in Zevachim (5b, 9b, 27b) deal with the question of whether an inheritor can bring the offering of his decedent.  While it is true that the idea of possession pertains to sacred things, and therefore we might be dealing with regular inheritance, the ownership of consecrated property is not only monetary ownership, but also metaphysical possession, connected to the offering of a sacrifice: there exists an obligation to offer the sacrifice for the sake of its owner.  Thus, we may ask whether when a person offers his father's sacrifice, this is because of financial inheritance, or perhaps because he substitutes for his father in a more essential manner and becomes the owner of the sacrifice, with all of its implications.

            As stated above, we might argue that these three realms have nothing to do with our case: that is to say, inheritance of an estate involves taking possession of the object, but not entering into the shoes of the deceased.  It stands to reason, however, that even in the case of inheriting property, there is a process of entering into the shoes of the deceased, as is implied by the Gemara in Bava Batra (108b):

What reason is there for including the son and excluding the brother?  The son is included because he takes his father's place for yi'ud and for an ancestral field. 

On the contrary! Include the brother, because he also takes the place of his brother in the case of levirate marriage.

Surely, levirate marriage takes place only where there is no son; but where there is a son, there is no levirate marriage.

            This Gemara states explicitly that inheritance is based on the idea of "taking the place" of the deceased, and the question that is being asked is who takes the place of the deceased in a more significant manner: his son or his brother.  The son takes his father's place for the purpose of yi'ud, that is, to change the status of a Hebrew maidservant and turn her into a married woman; the law is that a Hebrew servant serves the son and not the daughter.  It might be argued that this is simply a monetary law, but some understand that the master acquires the body of his Hebrew slave not in the monetary sense, but in the sense of personal status (see Kiddushin 16a, and Rishonim, ad loc.).  The son's authority over his father's Hebrew servant reflects, then, a fundamental relationship between the two, connected to the personal status of each of them, and not merely monetary inheritance.

            The same applies to the law regarding the redemption of an ancestral field: on the one hand, we are dealing with monetary possession, but on the other hand, there is an element of personal status that influences the laws of consecration and redemption of fields.

Inheritance among Non-Jews

            The simple understanding, then, of the Talmudic passage in Bava Batra 108b is that a son who inherits his father's estate acquires not only monetary control over his assets, but also takes the place of his father.  There is room to ask, however, whether all inheritance is executed in this manner; perhaps there is another course, in which the heir does not enter the shoes of the deceased, but merely acquires his assets.  It seems that we can argue that there exist two channels of inheritance, and that these two channels are distinct in their laws.

            We noted at the beginning of the shiur that inheritance is a universal concept.  The Gemara in Kiddushin 17b-18a learns from Scripture that a non-Jew inherits his father:

Rava said: “By Torah law, a non-Jew inherits his father, as it says: 'And he shall reckon with his purchaser' (Vayikra 25:50) – and not with the heirs of his purchaser.  This implies that he has heirs…” 

            In the case of a non-Jew purchasing a Jew as a servant, the Torah specifically excludes the former's heirs from exercising property rights over the latter.  Such an exclusion would only be necessary if the general rule were that a non-Jew inherits his father's property.  The Gemara then offers an alternative source, from the reason God gives to Moshe for not attacking certain nations as the Jewish people approach the border of the land of Israel:

Rav Chiya bar Avin said in the name of Rabbi Yochanan: “A non-Jew inherits his father by Torah law, as it is written: 'Because I have given Mount Sei'ir to Eisav as an inheritance' (Devarim 2:5).  Perhaps an apostate Israelite is different!  Rather from here: 'Because I have given Ar to the children of Lot as an inheritance' (Devarim 2:9).” 

            Regardless of the source, it is clear that non-Jews do inherit, even though the rule is that a non-Jew “has no lineage" (Bava Kama 88a).  There are two ways to understand this passage:

1)           It may be argued that the Gemara assumes that when a person dies, his assets are inherited by his relatives, but it is in doubt whether the concept of "family relations" applies to non-Jews, and this is what it derives from the various verses.  The difficulty in this understanding is that the Gemara should have learned the idea of family relations among non-Jews in a more explicit manner, as in Nazir 61a: there the Gemara deals explicitly with the question: "A non-Jew – does he have a father?"  This does not seem to be the issue discussed in our passage.

2)         The Gemara knows that family relations exist among non-Jews, but it has a specific question regarding inheritance.

The Gemara speaks about a non-Jew inheriting his father: The Rambam (Hilkhot Nachalot 6:9) understands that the Gemara's reference to the father is precise, ruling that “By Torah law, a non-Jew inherits his father, but in all other cases of inheritance, he is allowed to follow his own customs.”

The Me'iri in Kiddushin (ad loc.) disagrees with the Rambam.  According to him, the Gemara seizes the most common case of inheritance, but in fact a non-Jew inherits other relatives as well.[2]

What lies behind the Rambam's distinction?  One might have argued that this is a Scriptural decree, but the verse cited in the Gemara does not specify the inheritance of a son, but speaks in general about the concept of inheritance.  It therefore appears that the Rambam proposes this distinction based on logical reasoning.  The rationale seems to be based on what we stated above: a non-Jew comes in place of his father to inherit him, but there is no transfer of the estate.  Accordingly, a son who comes in place of his father inherits his estate, but other relatives do not inherit him.

As stated above, the Me'iri disagrees with the Rambam.  According to him, all the laws of inheritance apply to non-Jews as well.  He might not reject the idea of "taking the place of one's father," but he understands that in the case of non-Jews, there is no distinction between one who comes in place of his father and other heirs.  Alternatively, he might reject the very idea of "taking the place of one's father."

This issue should also be examined with respect to the inheritance of a daughter among non-Jews, though this is not the forum to do so.

Inheritance with Respect to Fines (Kenas)

            If a young girl (na'ara) is raped or seduced, her father is entitled to the monetary fine imposed on the offender.  But if the girl had already reached majority (bogeret), the fine is paid to her.  The Mishna and the Gemara in the third chapter of Ketubot discuss the time at which the obligation to pay comes into being: when precisely was the offense committed, when was the rapist or seducer arraigned, etc.

            The Gemara in Ketubot 38b deals with a case when the girl dies before the fine was exacted and before she reaches adulthood.  The Gemara asks whether "the state of majority is attainable in the grave."  Tosafot (ad loc., s.v. Yesh beger) deal with the general question whether monetary fines pass down by inheritance, and in the course of the discussion they point out an internal contradiction in the Talmudic passage.  Initially, the Gemara states that if the state of majority is attainable posthumously, then the son of the rape victim would be entitled to the fine (although the Gemara does conclude that it would be physically impossible for a child to be conceived and delivered during the short span of na'ara status), but in the continuation it says that if the state of majority is attainable in the grave, "the father forfeits" his right.  Tosafot ask: if we say that monetary fines pass down by inheritance, then why should the father not be entitled to the fine by way of the law of inheritance, just like the son?

            It may be that regarding the matter of inheriting fines, we must distinguish between the two channels of inheritance.  It might be argued that a fine cannot be transferred from one person to the next, but another person can take the place of the person to whom payment of the fine is due.  Therefore, if the rape victim has a son, he comes in place of his mother, and thus he is entitled to the fine, if indeed the state of majority is attainable in the grave.[3]  As opposed to the way her property passes over to her son, a woman's money passes over to her father by way of a financial transfer; such a transfer does not entitle him to a monetary fine.[4]

Inheritance and Partnership

            The Gemara in Bava Batra (113b) states:

Rabba bar Chanina cited [a beraita] before Rav Nachman:  "'Then it shall be, in the day that he causes his sons to inherit' (Devarim 21:16) - an inheritance may be divided in the daytime, but not at night.” 

Abbayei said to him: “If that is the case, would children be heirs only to he who died in the daytime, but not to he who died at night?  Perhaps [you mean] the adjudication of inheritance; as it was taught: "'”And it shall be unto the children of Israel a statute of justice" (Bamidbar 27:11) - the whole section has been proclaimed to be a matter of adjudication.'”

            The Rashbam (ad loc.) explains:

We find in another beraita that it turns all [the laws of] inheritance justiciable.  I might have thought that dividing up an estate is merely regarded as dividing up jointly-owned property, rather than as a legal decision.  Therefore the verse teaches us [that this is not so].

            The Rashbam explains that one might have thought that dividing up an estate among the various heirs is like dividing up jointly-owned property among the partners.  This is presented as the Gemara's initial assumption, but perhaps there is room to accept it even in the end with respect to a son who stands in place of his father.  That is to say, in an ordinary inheritance, there is a transfer of assets; in the case of a son, however, the assets are not transferred to the son, but rather he realizes his ownership in the property as if he were a partner in it.

Conclusion

            We have spoken about two models of inheritance:

1)         Inheritance in which property is transferred over to the heir, he being absolutely passive in the process; and

2)         Inheritance in which the heir plays an active role, "taking the place of his father."

In our spiritual world, we inherit and cause to inherit.  It must always be remembered, however, that this inheritance should be received in both modes.  We must not only passively accept our legacy, but rather inherit it in an active manner, by standing in the place of our forefathers.  An inheritance is not only a gift, but also an acquisition of status and an assumption of great responsibility.

In the Yerushalmi (Bava Batra 8:2), Rabbi Yochanan is perplexed by the verse “I will bring you to the land which I raised My hand to give to Avraham, Yitzchak and Ya'akov, and I will give it to you as an inheritance (morasha)” (Shemot 6:8), and he asks:

“If it is a gift, why call it an inheritance; if it is an inheritance, why call it a gift?  Rather, after He gave it to them as a gift, He gave it to them again as an inheritance.” 

Rabbi Hoshaya said: "Wherever the word morasha is used, it is a vague expression.”

Can that be so? Is it not written: "[Moshe commanded us the Torah,] an inheritance (morasha) to the congregation of Ya'akov" (Devarim 33:4)! 

He replied, ”There is none vaguer than this [initially], but whoever labors obtains it wholly.” 

            What the Yerushalmi is saying is that a person inherits the basics of Torah as a gift; afterwards, we must continue the mission on our own, and find the rest.  Inheritance is not merely a gift from the past, but also "a vague expression" – something that is yet to come into being, something that requires development and completion.