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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Tuesday, October 15, 2013

Love the Convert - How's That?

This time I'm going to write about another type of family law that might be dealt with in the batei din: inheritance law.  Notice I wrote "might be". That's because, unlike divorce for which the batei din have a monopoly, inheritance cases are heard in a beit din, rather than the civil court, only if all parties involved agree in writing to allow the beit din to judge on the case. That's a good thing, because women are not treated fairly in Jewish inheritance law.  But this time, I won't be addressing women's problems.  I'll be addressing how converts are treated under Jewish inheritance law, and we'll look at a case (940365/1) that was decided in the beit din in Be'er Sheva just a couple of months ago (August 18, 2013).

In this case, there is only one living person involved - the biological son of the deceased, who, a Holocaust survivor, has no other known living heirs (e.g., brothers), nor did he have any other children.  It should be quite simple and straightforward to determine that this son is the heir.  Except, the deceased's wife was not Jewish when the deceased had married her and when the son was born.  Mother and son converted to Judaism after immigrating to Israel.  As a result, the son is not considered his father's son halakhically.   According to halakha, a convert to Judaism has no yihus, or familial relationship, to his relatives from before the conversion.  Therefore, according to halakha, this son is not the heir to his biological father.

Dayyan Luz-Iluz wrote:
.לפי זה, היה ראוי לדחות את הבקשה להוצאת צו ירושה על שם המבקש
Based on this, it would have been appropriate to deny the request for an inheritance order in the name of the claimant.

But the dayyan (only one dayyan signed this pesak) sought to find a way, in this case, given that the claimant is a sincere mitzva-observing convert, to issue an inheritance order for the claimant.  It is quite possible that the fact that the civil court offers an alternative law was a motivating factor (would that the civil courts offer an alternative to the religious divorce laws), because the dayyan wrote:

הנה, בוודאי שאין מקום להפנות את המבקש לרשם לענייני ירושות, ששם אכן יוצא צו ירושה על שם המבקש, על פי הדין האזרחי, שאם על פי דין תורתנו הקדושה אינו יורש, מה נועיל בכך. ולכן, אם לא נוציא צו ירושה על שם המבקש, יועבר העיזבון לידי האפוטרופוס הכללי על פי חוק, ושם יחלקו את העיזבון כפי הוראות החוק למוסדות דת מדע ותרבות וכדו'. במצב כזה, לענ"ד ניתן להוציא צו ירושה על שם המבקש לאחר שנקבל את התחייבותו שאם יבוא מאן דהוא שהוא היורש של המנוח על פי דין תורה, ויתבע להעביר אליו את העיזבון, המבקש יצטרך להיענות לתביעה זו ללא היסוס, וכפי שיתבאר בהמשך. כך באמת עשיתי, ולאחר שקיבלתי את התחייבותו לכך הוריתי להוציא צו ירושה על שם המבקש.

Here it certainly would be inappropriate to refer the claimant to the Inheritance Registrar [i.e., the civil court], because there they would in fact issue an inheritance order in the name of the claimant, according to the civil law, while according to our holy Torah law, he is not the heir, so what would we gain by that?  [I.e., we wouldn't want to encourage someone to circumvent the halakha.]  Therefore, if we don't issue an inheritance order in the name of the claimant, the State authority for guardianship would take control of the estate, according to law, and it would divide the estate, according to the direction of the law, to religious, scientific, and cultural institutions, and the like.  In such a situation, in my humble opinion, an inheritance order should be issued for the claimant, once we receive his commitment that if someone comes who is an heir of the deceased according to halakha, and he sues to retrieve the estate, then the claimant must comply without hesitation, as will be clarified further. That is what I did, and once I obtained from him such a commitment, I gave the direction to issue an order of inheritance to the claimant in his name.

The pesak contains several pages of halakhic discussion about what would be done according to halakha with an estate that has no heir, and other questions somewhat related to the case at hand.  Apparently, the dayyan's motivation in including this discussion it to give halakhic backing to his decision - better for the estate to fall into the hands of the biological son than to those (in this case, institutions) who are not at all the rightful heirs, which would happen if he did not agree to issue an order of inheritance in the claimant's name (but, of course, only if the claimant did NOT go to the civil court, where he would have received the same result, without the pilpul, and without having to agree that if his father's long-lost brother shows up that he must hand over the estate).

For all practical purposes, the claimant would have received the same result whether from the beit din or from the civil court.  But that is only because the deceased had no other living relatives.

A recent article in Makor Rishon (a Hebrew newspaper in Israel whose readership is primarily national-religious) discussed this case and presented it as if the pesak was so compassionate and sensitive to reality.  Look at how wonderful the batei din can be!!

But suppose the case were just slightly different and their were two parties who came before the beit din - a brother of the deceased and this son, each wanting to claim the inheritance.  The beit din would award it to the brother. The civil court to the son.  Which do you think is the more just law, given that if only the son were born Jewish to this father, he would have been the heir according to halakha, too?

I know what I think.  

I don't know how many Israelis there are who were not born Jewish according to Orthodox law but have a Jewish father, but I will assume it is a common occurrence.  Whether these Israelis converted to Judaism or not, the civil court would recognize them as their fathers' children.  The beit din does not, and will only rule in their favor when it is not contested by any halakhic heir.

Some lessons to be learned:
1) Write a will!  This is true even if everyone in the family was born Jewish. (It is also important so that women in the family will be treated fairly.)  But it is even more important if there are non-Jewish (according to Orthodox law) members of the family.  There is no knowing who will decide that they want the beit din to probate your estate, and if they will pressure (or hoodwink) reluctant family members to agree.

2) In the event that there is no will, fortunately, by Israeli law, ALL parties who have an interest in the estate must agree to have the estate probated in the beit din for the beit din to assume the authority.  But, again, sometimes people are pressured into agreeing to go to the beit din, or they are naive and don't know what the results might be.

3) Learn what the halakha would say about your rights to inherit BEFORE you agree to have an estate probated in a beit din.

Oh, and 4) Love the convert!

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