The daughters of Tzlofchad approach Moses with a claim that will reshape the laws of inheritance for all time. Their father has died in the wilderness, leaving no sons, and they ask that his portion in the Land not be lost. Their request is granted, and alongside it the Torah records the general law of inheritance: a man's property passes to his sons, with the firstborn receiving a double portion, and only in the absence of sons does it pass to the daughters.
Nonetheless, for the past several centuries, methods have been found to distribute the assets differently, primarily to the end of including the daughters, to a partial or full degree. Sometimes, the double portion for the eldest is also eliminated.
This appears to be a complete circumvention of the Torah's rule and intent. Yet this is not only widely done in all segments of the observant Jewish community, it is strongly advocated by great authorities of halakhah (R. Shlomo Dichofsky, a prominent rabbinical court judge, writes in the journal *Techumin* that in his experience of thousands of estate cases, across all circles of observant Judaism, not a single one was intended to be distributed only to the sons and not to the daughters or the widow). Understanding this phenomenon requires separate consideration of the letter and the spirit of the law.
**The Letter of the Law**
As a general rule, Jewish monetary law is subject to modification by mutual agreement of the parties. Inheritance, however, is an exception (Bava Batra 130a; Maimonides, Hilkhot Nachalot 6:1; Shulchan Arukh, Choshen Mishpat 281:1); it is not merely a financial arrangement, but a mitzvah, a mandatory practice identified by the Torah (Numbers 27:11) as *Chukat Mishpat*, a "statute of justice." Further, it happens automatically; immediately upon one's death the assets become the property of the halakhic heirs.
As such, effecting any kind of alternative distribution faces obstacles both in terms of permissibility and of possibility. A number of approaches have emerged to address these challenges.
It should be noted that there are some authorities who have maintained that the simple execution of a civil will can indeed effectively serve these purposes, among them the preeminent decisor R. Moshe Feinstein (Resp. Iggerot Moshe, Even HaEzer I, 104 and 105). Further, there were instances of great Chasidic rabbis who left such wills and expected them to be carried out (there is extensive discussion in the responsa literature regarding the will of the Sadigerer Rebbe; see Resp. Maharsham II, 224, Resp. Maharia HaLevi II, 86, and Resp. Minchat Shai 75).
Of course, this position is not taken in simple disregard of Torah law. It is predicated on the belief that one or another of the methods that have been suggested for alternative asset distribution can actually be activated by the drafting of the civil will. For example, R. Feinstein's approach draws on the fact that one can distribute his property in any fashion he wishes if he does so while he is alive. Given that the terms of the will certainly will be enforced by the civil authorities, it may be possible to consider the execution of the will as effecting the transfer of the property at that time, while the testator is still alive. Some have explained that this is accomplished through the halakhic recognition of the authority of civil law, *dina d'malkhuta dina* (see R. Herzog, *Techukah L'Yisrael Al Pi HaTorah*, pp. 143–147). However, many authorities did not concur with this ruling and have advocated other approaches (among them Resp. Chatam Sofer, Choshen Mishpat 142; Resp. Lev Aryeh II, 57; and Resp. Minchat Asher III, 114).
It should be clarified here that the suggestion is not that *dina d'malkhuta* would mean that legal standards of inheritance supplant halakhic ones; *dina d'malkhuta* does not override Torah law. This point is made forcefully in the rishonim (Beit Yosef, Choshen Mishpat 26, citing Resp. Rashba) and in the halakhic codes, where it is asserted that the application of this concept to inheritance law would both exceed its scope and negate explicit sections of the Torah (R. Ovadiah Yosef makes this point in strong terms, with many citations, in his Resp. Yechaveh Da'at IV, 65). Rather, the suggestion is that when a will exists, civil recognition and enforcement of that will creates a reality that may accord with certain halakhic principles that would result in the practical validity of the will.
Perhaps the most widely known approach is one that has been used for centuries, known as the *shtar chatzi zakhar*, the "document of a half male portion," because it arranged for each of the daughters to receive a portion equal to half of that of what each son received (a thorough history of the *shtar chatzi zakhar*, and related methods, was authored by Prof. Simcha Assaf, and traces its first appearances to around the year 1400, noting that it was soon in wide use in the major Jewish population centers; R. Zalman Nechemiah Goldberg, in the journal *Techumin*, advocated for its renewed usage, having noted that it had fallen out of use). More recently, as the prevalence is for all the children to inherit equally, the term *shtar zakhar shalem*, the "document of a complete male portion," has become more common (the *Ketzot HaChoshen* refers to this document as customary).
Some have understood that the "half" model is in deference to the Torah's depiction of inheritance, which does not equate sons and daughters (the Chatam Sofer adds that the two-to-one ratio was used to echo the Torah's prescription for firstborn and other sons). R. Yitzchak Isaac HaLevi Herzog, the second Chief Rabbi of modern Israel, who devoted extensive attention to the ideal functioning of the nascent Jewish state, thought differently. In his writings, he observes that this does not seem to be the case. Rather, the allotments were calibrated to the perceived needs of the daughters, and need not be seen as the only acceptable ratio.
Usage of the "half" document, which functions the same way as the "whole" document, is recorded as customary by the Rama (Choshen Mishpat 281:7 and 113:2), and is sourced in the writings of the Maharil. It involves the father declaring that he has taken on a large debt to his daughter, which takes effect one hour before his death, and upon his death would pass on to his sons, as the halakhic heirs. If, however, the sons follow the father's instructions in distributing the assets, the debt will be canceled.
It has also become customary to combine this with another method, namely to transfer the assets at the time of the writing, when the testator is still alive and can distribute his assets as he wishes. The actual usage of the assets is stipulated to transfer following his death. One drawback, however, is that this is only effective for assets in his possession at that time. There are other limitations as well that make this method less effective and not applicable to all kinds of assets.
Versions of this document appear in earlier literature, largely associated with a desire to assist the daughters in marriage, first in providing a dowry and then to enhance her status within marriage. The history of these enactments traces back to the Talmud itself, which records a number of obligations the Rabbis incorporated into the process of marriage, directing increased assets toward wives and daughters.
Among these is the rule recorded in the mishnah (Ketubot 4:6) that upon a man's death, his daughters are entitled to support from the estate, until adulthood or marriage. This obligation is prioritized over the sons receiving their inheritance, and is a more inclusive obligation than a father's responsibility to sustain his daughters during his lifetime. A father could also direct assets to his daughters and their descendants through the establishing of a dowry (*nedunia*) on their behalf, which was also subject to additional enactments on behalf of her sons.
A husband inherits the property of his wife, although there is a dispute as to whether this is a matter of Torah law or rabbinic law. Either way, this would indicate that the Torah's rules were impacted by rabbinic enactment. If the inheritance is rabbinic, that itself is the modification from Torah law; if the inheritance is by Torah law, then that law was modified by later rabbinic enactments that diminished the husband's portion.
The Mabit maintained that the Torah's language of *Chukat Mishpat* precluded any possibility of rabbinic legislation altering the path of an inheritance. The modifications in the area of spousal inheritance, then, must function differently, as a result of knowing consent upon entering into a marriage. R. Herzog, however, argued that it was evident from earlier sources that it is indeed rabbinic authority that powered these changes.
There were innovations in the medieval era as well, including one associated with Rabbenu Tam. This addressed a situation in which a marriage lasted less than a year before the wife passed away. Rabbenu Tam, in recognition of the sorrow of a father who has to both bury his daughter and also lose the property that he had given over as her dowry, enacted that in these circumstances, the dowry should be returned to the father.
A later enactment was the *Takanat ShU"M* (Shpira, Vermaiza, and Magentza, the communities now known as Speyer, Worms, and Mainz), which dictated, among other policies, that if one spouse died within two years of marriage, half of the dowry goes to the heirs of the deceased. This enactment was deemed to have spread to the extent that it was considered a condition of marriage even when not spelled out as such. The enactment of *Tulitula*, probably Toledo, included the rule that if a woman died during her husband's lifetime, the husband and her heirs would split what remained of her dowry and her assets. A number of other enactments existed as well, to different degrees of acceptance.
Following in the path of these earlier innovations, R. Herzog proposed that the Chief Rabbinate of Israel should make an enactment that daughters should receive an equal portion instead of what was provided to them by the earlier, Talmudic enactments, and this should be written into the *ketubot* of their mothers.
In formulating his proposal, R. Herzog noted that it was difficult to determine why the Rabbis of the Talmudic era felt a need to put into place policies that were not considered necessary by the Torah itself. Perhaps, he speculated, economic situations following the destruction of the Temple were so radically different that they necessitated new approaches; however, given that it is not known exactly when these policies were put into place, it is difficult to assume with confidence.
R. Binyamin Zvi Rabinowitz Teumim, in a lengthy essay, discussed an enactment of this nature, and emphasized that the reality of the needs of women to support themselves is different today than it was in ancient times, essentially identical to that of men (as R. Mordechai Willig notes, the difference in economic realities is indicated by a statement in the Talmud, Bava Kama 15a, that men are involved with business dealings and women are not, and suggests that a Torah law may have been addressed to that reality). Accordingly, any such innovation is not an attempt to modernize the Torah or to imitate other cultures, but simply a response to actual needs, in the sense that earlier enactments were calibrated to the needs of that time.
Nonetheless, he notes that there has long been opposition to any act that would fundamentally change the inheritance laws of the Torah in their totality, and thus maintained that an enactment would have to satisfy a number of conditions. It should not be imposed unilaterally as an act of *hefker beit din*, given the historic refusal to utilize this tool in this way; it should be formulated in a way to protect the general structure of the Torah's inheritance laws; it should be connected, at least theoretically, to supporting the marriage of the daughters, as earlier enactments were; and it should be formulated as a gift, not as an inheritance.
Accordingly, he thought that a clause in the ketubah at the time of marriage, obligating a husband to gift to his daughters in a fashion equal to what the sons would inherit, satisfied all of the above purposes.
The Chazon Ish, in a letter to R. Isser Zalman Meltzer, expressed his deep opposition to the suggestion of an enactment, and their disapproval, together with that of the Brisker Rav, R. Yitzchak Ze'ev Soloveitchik, also cited in the letter, was a significant factor in the failure of this proposal to become accepted.
These mechanisms, varied as they are, share a common purpose: to find a path, within the halakhic framework, toward a distribution of assets that reflects the actual wishes of the family. The harder question, of why such mechanisms should not be considered an evasion of the Torah's own intent, is the question of the spirit of the law, and that is the subject of Part Two.
