הלכה על בבא בתרא 8:5

Although Torah law dictates that wives do not inherit their husbands’ estates and that daughters inherit nothing from a testator who has sons, the most commonly desired distribution today is for sons and daughters to share equally in the estate and for one’s wife (if she is the mother of his children) to inherit the entire estate if he predeceases her. How can one achieve this personal objective without violating the halachic requirements of yerushah? One cannot simply stipulate that he wants his wife¹Rav Mordechai Willig notes (in an essay entitled “Inheritance Without a Fight,” available at www.torahweb.org) that in the common case of joint ownership of a home or other assets, the surviving spouse probably is the owner according to the Halachah as well (as we discussed in an earlier chapter). and/or daughters to inherit, as Halachah regards this as an invalid stipulation (Bava Batra 8:5). Even though we accept the opinion of Rabi Yehudah that “B’davar sheb’mamon tena’o kayam” (monetary stipulations are valid even if they contradict Torah law; Bava Metzia 94a and Shulchan Aruch E.H. 38:5), stipulations made in contradiction to the Torah rules of yerushah are invalid. The Rambam (Hilchot Nachalot 6:1) explains that the Torah (Bemidbar 27:11) describes the rules of inheritance as “chukat mishpat” (a decree of judgment), meaning that it applies in all circumstances and cannot be overridden by stipulations.

A similar conclusion emerges from the Mishnah’s statement (Bava Batra 8:5) that if one gives his assets to others and leaves nothing for his sons to inherit, what he has done is halachically valid, but “Ein ruach chachamim nochah heimenu” (the sages are not pleased with him). In other words, his actions violate the spirit of Halachah.¹It should be noted that the term “Ein ruach chachamim nochah heimenu” is not a mild rebuke. The Rashbam (commenting to Bava Batra 133b s.v. Ein) explains this phrase to mean that Chazal are deeply disturbed by someone disinheriting his halachic heirs. The Rashbam’s comments are cited by the Sema (C.M. 282:2) in a halachic context. Although Rabban Shimon ben Gamliel asserts that one who transfers his assets away from misbehaving children should be “remembered for good,” the Gemara (Bava Batra 133b) sides with the authoritative words of Shmuel that one should not engage in “avurei achsanta” (shifting inheritance) even from a bad son to a good son. The Gemara (Ketubot 53a) explains that one cannot know what will become of the “bad” son’s descendants – perhaps they will be righteous and will deserve the financial support of their ancestor. Shmuel’s opinion is codified by the Rambam (Hilchot Nachalot 6:11) and the Shulchan Aruch (C.M. 282). The Sema (282:1) adds that the “bad” son should not be disinherited even if he did not demonstrate proper respect for his father during his lifetime.