The Role of the Deceased in the Yerusha Process

  • Rav Moshe Taragin
Sponsored by Adam and Nurit Lerer 
in loving memory of Adam’s grandfather, 
Murray Lerer / Moshe Yitzchak Ben Avraham Aryeh Z”L
The process of yerusha (inheritance) appears to be a halakhic process that is not directed by the person who dies. The Torah delineates a very clear sequence of inheritors, and the deceased cannot alter this sequence. Moreover, the inheritance occurs only after a person has died, at which point he doesn’t possess the ability to direct acts of kinyan ein kinyan le-achar mita. It appears that the transfer of inheritance, although monetarily driven, is unlike any other monetary transaction, but is automatically executed by the halakhic system without any direction or control by the deceased (or, for that matter, without any active role of the beneficiary).
To be sure, the dissenting opinion of R. Yochanan ben Beroka (Bava Batra 130a) implies an active role for the deceased in delivering his inheritance. In earlier shiurim (; we addressed the unique position that empowers an individual to personalize the inheritance process by redirecting his estate in a discretionary manner. However, it appears that those who disagree R. Yochanan ben Beroka view the inheritance process as purely automatic and beyond the realm and halakhic purview of the deceased.
Interestingly, the first mishna in the eighth perek of Bava Batra (108a) (which outlines the laws of inheritance) implies otherwise. In listing various scenarios of inheritance, the mishna describes those who are “manchil” – literally, who deliver nachala (inheritance). A literal read of this word suggests that the original owner (now deceased) indeed plays an active role in delivering his inheritance to the ultimate inheritors.
This notion is reinforced by an interesting comment of Rabbenu Tam cited by Tosafot in Gittin (13a). The Rabbanan instituted a principle known as mitzva le-kayem divrei ha-met, which mandates that inheritance can be verbally assigned by a person before he dies, even if this assignment deviates from the classic sequence and mechanisms of inheritance. This Rabbinic takana may be understood simply as an “external” process unrelated to inheritance that allows us to attend to the wishes of the deceased. In fact, the Machaneh Ephraim (Zechiya U-Matana 29) claims that the inheritor does not achieve a full kinyan in this case until he executes a classic act of kinyan, as this is not classic yerusha. This takana is purely a Rabbinic mandate to execute the will of the deceased; in no way does it reflect the mechanics of yerusha inheritance.
Rabbenu Tam, however, implies differently when he addresses the non-application of the principle of mitzva le-kayem to a convert. He claims that this takana is a Rabbinic form of pseudo-inheritance applied only to those who enjoy halakhic yerusha. A convert possesses no halakhic relationships since his family status is rebooted at conversion. Since he doesn’t experience halakhic inheritance the takana does not apply to him. Limiting the principle of mitzva le-kayem divrei ha-met only to people who participate in halakhic inheritance is an astounding concept and clearly aligns this Rabbinic injunction with the process of yerusha. Even more striking is Rabbenu Tam’s language: The injunction is only applied to people who are halakhically inherited and whose halakhic influence over the estate continues after death. Those deceased who are legally inherited are considered people who – after death – continue to exert halakhic influence over their estate through the inheritance process. They are therefore candidates for a takana to enable alternate inheritance designation. Rabbenu Tam does not specify what influence the deceased exerts through inheritance, but it is clear that the deceased is an active force in the process.
The halakha that most clearly indicates an active role for the deceased is the notion of mishmush, which assigns inheritance to second level recipients in the absence of primary ones. For example, in the absence of siblings, parents, or children, a person’s inheritance will be directed to his uncles. In another shiur ( we explored whether mishmush reflects a direct relationship between the deceased and the secondary inheritors or instead reflects the inheritance being delivered to the primary and previously deceased inheritors, who, in death, relay them to secondary inheritors. In the above stated example, does Halakha view an uncle as a direct “second-level” mishmush inheritor of a deceased person, or does the inheritance go to the dead person’s previously deceased father, who then “relays” the inheritance to his brother – the uncle of the deceased? There are several versions of this second perspective of mishmush, but it clearly indicates that inheritance is not depersonalized. It does not flow automatically after death, but is instead a halakhic “ability” that can be transferred to next of kin.
An additional halakha that may indicate an active posthumous role for the deceased is the concept of tefusat ha-bayit. Several Rishonim (see the Rashba and Yad Rama, Bava Batra 126b) likened the pre-chaluka state to the state of shutafut, halakhic partnership. Prior to the division of the estate, all children enjoy a share of the estate in a manner that shutafim (partners) enjoy shares in a commonly held monetary entity. This allows the children to sell their shares prior to chaluka, much in the manner that a partner can sell his share to others. The Rashbam (Bava Batra 126b) argues that the would-be inheritors cannot transfer their share, prompting many to suggest that he rejects the shutafim model that others employ to explain the status of the estate prior to chaluka.
In fact, the mishna in Bekhorot (56b) distinguishes between partnerships and jointly held estates prior to the chaluka-division in the context of two different halakhot. First, partners are exempt from the mitzva of ma’aser beheima, whereas inheritors are obligated in this mitzva. Second, partners who offer a full shekel to cover their machazit ha-shekel requirement must add on a rabbinic top-off called a kalbon. Since two autonomous individuals are each delivering their respective half-shekel, they must add a symbolic payment as well. By contrast, if two co-inheritors were to deliver their machazit ha-shekel requirement from the monies of the estate prior to chaluka, they would be excused from the kalbon add-on. It thus seems that the estate prior to chaluka is defined very differently from classic partnerships.
One way to define this estate – or as the gemara in Bekhorot refers to it, the “tefusat ha-bayit” – is to liken it to a public holding. Modern economies acknowledge the notion of publicly held financial elements, and Halakha provides several examples as well. R. Elchanan Wasserman (Kovetz Shiurim, Bava Batra 404) likens this to a public korban, which is a publicly held asset and not merely an animal jointly owned by every single Jew in partnership. Although his view of a korban tzibbur is debatable, the concept is clear. Some have suggested that items designated for Kohanim (such as teruma) are considered publicly held by the corporation of Kohanim (shevet ha-Kohanim) prior to the grains being delivered to a specific Kohen.
However, a more literal reading of Rashi in Bekhorot (and Beitza 39b) implies a different definition of tefusat ha-bayit. Rashi claims that until chaluka division, the estate is considered held by the father (who clearly owned all of the estate as a single owner and not an amalgamation of partners). If the father still owns the estate until the division of chaluka, that would corroborate that he is – even in death – an active participant in the distribution of inheritance.
Yet another indicator that a deceased person influences the process is indicated by a challenging halakha cited in two mishnayot in Bava Batra (126b and 130a). As noted above, R. Yochanan ben Beroka allows personalization of the inheritance process and redirection of inheritance. He clearly views the deceased as an active participant in the inheritance process. The majority opinion disagrees and does not allow inheritance redirection, presumably because the deceased is not an active participant in yerusha. Yet the gemara explains the inability to redirect inheritance based on the principle of matneh al mah she-katuv ba-Torah. This principle (discussed in an earlier shiur: limits the ability to affect halakhic changes that are contradictory to the Torah. For example, a person cannot launch marriage without the components of she’er kesut ve-ona. Although Halakha empowers us to initiate the status of kiddushin, we cannot deviate from the Torah’s halakhic guidelines. But this rule only applies to halakhic processes that a human being can otherwise control had he not contradicted halakha. Presumably, since a person does not actively guide his inheritance, he is precluded from altering the process, independent of whether it contradicts the Torah and falls under the category of matneh al ma she-katuv ba-Torah. He cannot affect the process because he is a complete outsider! If we take this gemara at face value (see Tosafot, Ketuvot 56b, who suggest that we should not), we must view the deceased as directing his inheritance. In theory, he should have the ability to redirect it, since he actively launches yerusha, just as he actively initiates kiddushin. In both cases, his halakhic capacity is limited, however, to launching a halakhic process that accords with the Torah’s guidelines. The very application of matneh al ma she-katuv ba-Torah implies his active participation in the process of yerusha.