Q. Yaakov wrote a will in which he instructed that his estate be divided among, and ownership be transferred equally to, his sons and daughters. Knowing that it would be halachically impossible to transfer ownership once he passed away (Bava Basra 152a), since at that point, the assets would no longer belong to him, he followed the custom of writing the will with the following clauses:
- The transfer of ownership of the physical assets (guf) would commence with the writing of the will, so that the recipient of each asset acquires it immediately.
- The rights to the “yield” (peiros) — i.e., whatever is produced by the assets, including, for instance, rent from property he owns — belongs to him until he passes away.
- He may renege on this decision at any point, and if he sells a property, that constitutes an implied revocation of his previous transfer of ownership of that item. This clause is necessary in case he decides at some point to sell an asset, after having officially transferred its ownership to his heirs.
Several years before Yaakov’s passing, one of his daughters, Dinah, predeceased him. When he later passed away, a debate arose regarding who has the rights to the assets she was slated to inherit from Yaakov, with the following claims emerging:
- Yaakov’s other heirs (i.e., Dinah’s siblings) claim that their father wanted only his children to inherit him, and since Dinah is no longer alive, the assets that were earmarked for her should be split among them.
- Dinah’s husband claims that since Yaakov had transferred ownership of his assets immediately upon writing his will, Dinah owned her portion when she died, and he, as her husband, inherited it along with all of her other assets.
- Dinah’s children claim that their grandfather certainly didn’t want his son-in-law to inherit his assets and then remarry and squander them on non-heirs, and that he certainly would have wanted his inheritance to go to them, since their mother was no longer alive.
Who is correct?
Answer
We do not lend any credibility to the assertion of Dinah’s siblings that there is an umdena (presumption) that their father wanted only Dinah herself to inherit the assets earmarked for her. Had she been survived by only a husband and no children, perhaps there would be a case to claim that Yaakov preferred that his assets remain among his direct heirs, and not go to his son-in-law, and the poskim actually debate that possibility. Some differentiate between cases in which the will is worded as an acknowledgment (hodaah) that the assets already belong to Dinah, which cannot be nullified on the basis of such an umdena, and these assets might be inherited by her husband; and cases in which the will is phrased in a way that Yaakov transfers his assets to her as a gift (see Shulchan Ha’aruch, Even Ha’ezer 90:1 and Pis’chei Teshuvah 1; Haflaah and Chochmas Shlomo ibid.).
If the transfer of ownership is not nullified by an umdena, it would seem that Dinah’s husband is the rightful owner of the assets transferred to Dinah in Yaakov’s will, given that they were transferred during her lifetime and he inherited them upon her passing (Choshen Mishpat 248:9 and 278:10; Even Ha’ezer 90:1).
The halachah is, however, that a husband only inherits assets that were in wife’s possession (muchzak) at the time of her passing, but not assets that were not yet in her possession (ra’ui) — even if they were going to become hers at some later point. In this case, since Yaakov’s assets were not physically under Dinah’s control at the time of her passing, it would seem, on one hand, that her husband does not inherit them. On the other hand, since the assets themselves were transferred to her ownership, perhaps they should be included in her estate and be inherited by her husband?
But some Rishonim (Baal Hama’or, Bava Basra 125b; and see Ketzos Hachoshen 248:11) write that vis-à-vis his heirs, Yaakov’s estate is considered ra’ui, not muchzak, since he stipulated, as is the standard practice, that he would be allowed to renege on the transfer of his assets at any point (see Choshen Mishpat 257:7; this right exists even if he forgot to make this stipulation in his will, as per Kovetz Teshuvos 1:100). Obviously, then, they were not considered muchzak by Dinah, and since she predeceased Yaakov, her husband does not inherit them.
In reality, then, the assets Dinah would have inherited from Yaakov are inherited by her children, who do have the right to her assets even if they were only ra’ui (see Mishpatecha L’Yaakov 7:27; Mishpat Hatzavaah 3:5, who rule this way in most circumstances).
