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Parshat Pinchas: Are laws of inheritance inherent or changeable?

Tammuz 5783 | July 2023


The question

The disparity between today’s social norms and the Torah’s laws of property and inheritance can be frustrating for many modern observant Jews. This disparity begs the question: in these matters, are Torah laws “flexible” or “fixed” – unchangeable and, perhaps, eternal?

Interfering with Torah law

The events of Parshat Pinchas (and later Parshat Masei) indicate that there is room to negotiate the Torah’s laws of inheritance, or at least there was while the Torah was still in the process of being written.[1] Nevertheless, it seems that the topic is complex and should not be oversimplified.

We’ll begin with the halakhic sources and then return to the parsha. Our question is related to a more general question: to what extent are we permitted to interfere with the laws of the Torah? This question is at the heart of a dispute concerning someone who “makes a condition about something written in the Torah,” which refers to a case where a person commits to something with a condition that is contrary to Torah law.[2]

Rabbi Meir teaches that such conditions are null and void. Therefore, if a man marries (kiddushin) a woman on the condition that he is not liable to provide for her according to his Torah obligations, Rabbi Meir “erases” the invalid condition; the condition is voided but the marriage is valid and the husband must fulfill his Torah obligations to his wife.

Rabbi Yehuda also voids most of these conditions but upholds conditions that are essentially monetary arrangements contrary to Torah law. So in the case above, the marriage is valid, part of the condition is void and part is valid. He is not absolved of his non-monetary Torah obligations, meaning he is obligated in regular marital relations (onata), but the condition regarding his monetary Torah obligations is valid and he is no longer liable to provide his wife with food (she’era) and clothing (k’suta).[3]

Why are some conditions valid but not others?

Rabbi Yehuda’s opinion supports the conclusion that the Torah is “open” to arrangements between individuals, “in monetary matters the condition is valid.” Since a person is allowed to gift their possessions to another, they may also negotiate their own monetary arrangements. Consequently, we can view a woman who agrees to such a marriage as if she has committed to gift her husband all the money he owes her due to his marital obligations.[4] It’s also possible to view the Torah laws concerning money as a “default option,” open to other arrangements. It seems Rabbi Meir considers these laws obligatory, while Rabbi Yehuda understands them as guidelines or suggestions.

Nevertheless, the laws of inheritance are more complicated. Inheritance is not exclusively an economic issue, it preserves the chain of custody of the land God allocated to a particular family. Inherently it’s not about transient money or objects, but rather the enduring legacy of ancestral portions of land handed down from generation to generation. While a person is allowed to give their property freely during their lifetime, Chazal ruled that one may not tamper with the Torah’s laws of inheritance.[5] Consequently, it’s possible to technically abide by the Torah’s laws of inheritance while distributing property as one wishes by making arrangements to endow retroactive gifts after one dies (by stipulating these gifts were retroactively given before one passed).

While it’s possible to bypass the Torah’s laws of inheritance through such retroactive gifts, many rabbinic authorities criticized people who passed their property to people outside the family, or even deviated from the Torah’s division of property among one’s children.[6] Among other matters, the sages were concerned with the long term consequences of choosing people to receive or inherit property. Furthermore, since the laws of inheritance were a source of conflict between the Talmudic sages and the Sadducees, the former opposed changes that contradicted the language of the Torah.[7]

What about the daughters?

In practice, providing daughters with some form of an inheritance through such gifts, especially gifts of land, is more complicated. In addition to the problem of interfering with the established laws of inheritance, the sages had the same concern as the Children of Menashe – that the portion would pass from one tribe’s territory to that of another.[8] Yet the sages also instituted the practice that a father should gift his daughter with a dowry of one tenth of his property (including lands) when he marries her off.[9]

To encourage fathers to give this dowry they included a stipulation in the ketuba (marriage contract) that ensured the inheritance did not pass outside of the “family.” In the event that a woman dies before her husband he inherits her property and not her children; he has the power to bequeath it to children he has with another woman. Fathers might hesitate to give their daughters significant dowries since there’s a possibility the property would be passed outside the family. So Chazal established a clause in the ketuba – in the event a woman predeceases her husband, the property she brought into the marriage, plus the money her husband owes her according to her ketuba, must pass on to her children and not children he may have from another woman.

This takana (ordinance), referred to as “ketubat banin dikhrin” “the ketuba of male children,” was justified by the claim that it was meant to encourage marriage – a large dowry motivates men to “take wives.” The sages believed this takana preserved a Torah value, as the prophet Yirmiyahu encouraged the people to “Take wives for your sons and give your daughters to men.”[10]

Ostensibly, the sages appear to have established a takana that somewhat circumvented the Torah’s inheritance laws by encouraging fathers to bequeath property to their daughters, but they justified it based on another Torah value they were trying to preserve. They also crafted the takana to work within established halakhic frameworks – aligning with the laws of inheritance by dividing the property among the daughter’s male children (in the original takana) and working within the ketuba’s framework (which stipulates what property could be consigned to pay a husband’s ketuba debt to his wife). Furthermore, the sages ordained that this takana should not be fulfilled if it did not leave enough money to distribute among the other children according to the Torah’s laws of inheritance. In other words, the takana was void if it conflicted with Torah law.

A formula for change

Accordingly, there seem to be several principles to maintain a certain balance. The impetus for the change must be the preservation of a Torah value. The mechanism used must work within the halakhic system even if it does not precisely adhere to the Torah’s guidelines. Finally, there must be a condition to ensure that the Torah’s laws are fulfilled, even if it is purely symbolic.

We can see these principles at play in the case of Tzelofchad’s daughters and the children of Menashe. The desire to preserve the Torah value of perpetuating a father’s name through the land apportioned to him by God is combined with a novel halakhic mechanism that is counterbalanced by a condition that ensures the Torah’s original law – that each tribe retains its apportioned land.

We can see these forces at play in future generations. As time marches on more ordinances concerning laws of inheritance have been made, some provide women with financial security, or encourage them to get married (and their fathers to give them dowries and find them husbands), but throughout they have worked within established halakhic frameworks and aligned with existing halakhic mechanisms.[11] Changes are not automatically allowed and they can’t be based solely on changing times, they must be internally regulated conscientious ordinances designed to preserve an eternal Torah value. When there’s some concern that the change is not motivated by a Torah value but by modern sensibilities, a gatekeeper will emerge to oppose it.[12]

Perhaps the reason the laws of inheritance are able to incorporate other considerations, such as encouraging marriage, is that it’s no longer possible to fulfill the these laws within the original Torah context that perpetuated the Divine allotment of land “according to their fathers’ tribe,” “a portion within the brothers of your father.” It will be interesting to see what new form these laws will take when the entire people of Israel are once again settled in their land according to tribal portions.

[1] Bamidbar 27:36

[2] Mishna Bava Metzia 7:10-11, Bava Batra 8:5, TB Ketubot 56b and more

[3] Based on the language of the verse “He may not [give] less than her food, clothing, and conjugal relations (she’era, kesuta, v’onata)” (Shemot 21:10) Chazal explained that a man has a Torah obligation to provide his wife with food, clothing, and marital relations with some regularity. (TB Ketibot 47b)

[4] For example see Rabbi Ovadia of Bartenura on Mishna Bava Batra 8:5

[5] Mishna Bava Batra 8:5

[6] Mishna Bava Batra 8:5, TB Ketubot 52b

[7] TB Bava Batra 115b

[8] TB Ketubot 52b – 53a

[9] ibid

[10] Yirmiyahu 29:6

[11] For example, see: Nakhalat Shiva’a 21:40; Tzitz Eliezer V 27 16:52; Rav Shlomo Dichovsky “Ketuba menugedet la’tzeva’a” Tekhumin 19

[12] See Responsa Rashba VI 254

Rabbanit Dr. Adina Sternberg

has a B.A. in Bible from Hebrew University and a M.A. and Ph.D. in Talmud from Bar Ilan University. Adina studied in Midreshet Lindenbaum, Migdal Oz, Havruta and the Advanced Talmud Institute in Matan. She currently teaches Bible and Talmud at Matan, and Efrata and Orot colleges. Adina lives in Adam (Geva Binyamin) with her family.