Much of modern law is based on religious principles. The field of estate planning is no different. While its origins may have Halachic roots, Jewish law and modern testamentary statutes differ significantly.
Origins in Halacha
Jewish inheritance law is set forth in the Book of Numbers (Bamidbar) and Deuteronomy (Devarim). Deuteronomy 21:17 states: “Instead, he must accept the first born, the son of the unloved one, and allot to him a double portion of all he possesses; since he is the first fruit of his vigor, the birthright is his due.” Numbers 27:8-11 provides: “Further, speak to the Israelite people as follows: “If a man dies without leaving a son, you shall transfer his property to his daughter. If he has no daughter, you shall assign his property to his brothers. If he has no brothers, you shall assign his property to his father’s brothers. If his father had no brothers, you shall assign his property to his nearest relative in his own clan, and he shall inherit it. This shall be the law of procedure for the Israelites, in accordance with the Lord’s command to Moses.”
Beneficiary order under Halacha
Based on Halacha, a decedent’s property transfers in the following beneficiary order: son (the eldest receives a double portion), daughter, decedent’s father, paternal brothers, paternal sisters, paternal grandfather, paternal uncles, paternal aunts and paternal great-grandfather
Missing is the decedent’s wife. She is entitled to receive the amount provided in the antenuptial agreement (the ketubah) or to be supported until she remarries. Also, though daughters are not beneficiaries, if any sons survive daughters are to receive wedding expenses and minor daughters are to be supported.
It is important to note that if a person dies intestate (without a will), their assets will be distributed in accordance with the laws of the state in which the decedent resides. Such intestacy statutes do not follow Halacha. Accordingly, it is important for anyone wishing to follow Halacha to set forth their wishes in a legally binding will. No provisions can be made to ensure compliance with Halacha after death.
To be certain, many Jews adhere to less strict interpretations of Halacha, instead focusing on the principles of commitment and protection of the family and Jewish community.
Tools that can be used
For those who wish to follow the biblical mandates and make provisions for non-Halachic beneficiaries, a testator may employ certain tools, including the transfer of assets through inter vivos gift (gifts made during lifetime), revocable trusts, or shtar chatzi zachar (the creation of indebtedness between the testator and the non-Halachic).
Gratuitous transfers in the form of monetary gifts or through the transfer of property may be the easiest to effectuate. However, current federal tax laws only permit gifts in the amount of $14,000 annually or $5.4 million in a lifetime without a tax consequence.
Further, many testators need to retain possession or control of their assets during their lifetime.
A testator can also create a trust to distribute assets. The testator transfers assets to the trust and sets forth the distribution of those assets after the testator’s death. Properly drafted and funded trusts are considered some of the best mechanisms for asset protection and to avoid estate taxes and probate.
Identify goals and options
Other end-of-life issues also have legal and religious implications, such as healthcare powers of attorney and life-sustaining treatments. Whether seeking strict adherence to Halacha or simply hoping to ensure your families’ protection for the future, proper estate planning is essential.
Discussions with a knowledgeable rabbi and estate planning professional can help you identify your estate-planning goals, requirements and options.