CHOCHMAS NASHIM: KI TEITZEI: PI SHNAYIM
By: Suri Davis
This week’s torah portion discusses leaving a double portion of a man’s estate to the eldest son. It appears in the Toras Menachem edition of Deuteronomy that this mitzvah is not counted among the 27 mitzvahs/commandments/good deeds set forth in the torah portion.
This mitzvah is interesting to me as a New York estate attorney. In my experience, when there is a married couple with children, generally, one spouse will leave his/her assets to the other spouse, and when both pass away, they leave their estates to their children in equal shares. It tends to work out well for the general public, and it ensures no jealousy among the children, no favoritism etc.
I have several clients who are Orthodox rabbis, they have held to the concept of dina d’malchutah dina/the law of the land where the rabbi lives is respected as the pertinent law. Under New York State law, if a person dies without a will, intestate, then his/her share is split between the children and surviving spouse. BEWARE many think that without a will, all goes to the spouse. Not true.
It turns problematic when there is no will and half of the estate passes to the children and half to a spouse, especially when the spouse is a second marriage spouse and it pits the children from the first marriage against the second spouse, who is not the children’s parent. A surviving spouse can lose her home, if she has to split it with the children. One of the important reasons to have a will.
Here comes this week’s Torah portion discussing primogeniture, where the eldest son receives a double portion of his father’s estate. It should be noted that in the days of the Talmud, it was this son who was also responsible for ensuring that his sisters and mother were cared for, for their lives, or until they married. If there were insufficient funds to care for the sons and daughters, the money was to go to the daughters as it was easier for the men to make funds than the women, although, as always, the gemara records a dispute about this.
One way to avoid this is to believe dina d’malchuta dina/the law of the land prevails. Another alternative, is a document created by a rabbi, who is also an attorney, which is attached to the will and states that all bequests in the will should be treated as though they were gifts given immediately before the husband/father’s death. This method I use easily with clients who want to address the halachic issue of Pi Shnayim/two portions to the eldest son.
What has happened, and would not surprise if this abusive practice doesn’t continue, is the following: A halachic will is drawn up providing shares to the sons, and no bequests to the wife and daughters. The husband/father believes that the sons will care for spouse and daughters, as required under Jewish law. The issue as anyone who goes to a Beis Din is aware, the Beis Din has no ability to enforce Jewish law. Shuls and their rabbis should deny entrance to those who ignore a Beis Din hazmanah/subpoena. But shuls and their rabbis have no desire “to get involved in politics, or be sued,” so they permit those who str a seruv ladin/one who refuses to come to a Beis Din who has served him a subpoena, to continue to access shuls and minyanim. Accordingly, there are no real consequences to sons inheriting all from their father, and not caring for the father’s wife and daughters.
The sons take their halachic will to a Beis Din, the terms of the halachic will, which is signed according to the terms of New York State law, it states that all matters will be determined under Jewish law by the Beis Din, who permits the sons exclusively to inherit from their father, but the Beis Din has no power to enforce what happens to the money once it is in the hands of the sons.
The Beis Din also has no oversight, any group of rabbis can form one, and as we have seen in the past, even rabbis will not submit to the jurisdiction of just any Beis Din.
We have a very broken Beis Din system here in New York and my recommendation is to work with an attorney who understands Jewish law to ensure that fathers/husbands leave their estates to those whom they love and to protect against jealousies and animosities among surviving family members.
Have a good Shabbos.
Suri