Thursday, December 31, 2009

An injustice in Jewish law

I can't find a link to this article, so I'm just going to type it in manually.

Friday, December 25, 2009

Raphael Grunfeld

Bat Bimkom Ben [a daughter instead of a son]

"In attempting to explain why the Jewish law of inheritance does not permit daughters to inherit [from] their father if the father has sons, we have mentioned the principal of patrilinial descent [side grumble: if this works for inheritance, why not for defining who is a Jew?] and the fact that the woman looks to her husband's "Family Bank" for support than than to her own father.

The second principle to bear in mind is that the rights of the daughter and the wife to the estate of the father/husband are only part of their financial rights to the Family Bank.

Both the daughter and the wife have other rights against the Family Bank for financial support. Were they to receive a portion of the estate in addition to these other financial rights, they would be double dipping.

What are these other rights of the daughter and wife of the deceased against the Family Bank?

Both the daughter and the wife of the deceased have the right, following his death, to have his estate pay for their food, clothing and medical expenses and the right to use the household utensils and the services of the family household domestic personnel. The expenses involved in the support of the daughter and the wife are a charge on the estate in the hands of the sons. If there are insufficient assets in the estate to pay for the upkeep of both the sons and the daughters, the sons must first take care of the needs of their sisters even if this means that the sons will have to go begging.

In addition, the wife has the right to continue living in the family house until she remarries. The daughter has the right to have her brothers pay for her furnished lodging until she marries. In addition, the daughter is entitled to receive from her brother a dowry to be paid to her out of the estate. The amount of the dowry is the greater of the amount that the father gave to his other daughters who married during his lifetime or 10% of the estate.

Although all of this may only take us part of the way to better understand why sons inherit ahead of daughters and wives, it does not take us all the way. For example, the legal right of the daughter to received support from the estate (not the right to the dowry) expires when she reaches the age of 12 1/2, "Bagrut." From then on, she must rely on charity. Why this is so, is as much of a mystery, a "Chok," as death itself."

Essentially, the Jewish law of inheritance reduces widows and female orphans to the status of beggars, totally dependent on the good will of their husband's/father's sons. That didn't work very well in Jane Austen's "Sense and Sensibility," did it?

The wife, who may have helped her husband, directly or indirectly, in his career, and/or who may have cared for him through illness, has no right to any of his estate if she should be fortunate enough to remarry. What reward does she get for her labors under the sun?

The daughter is cut loose to fend for herself at 12 1/2, an age at which, in the "developed" countries of the 21st-century world, she's too young either to work or to wed.

And all Rabbi Grunfeld has to say is that this law is a mystery?


Anonymous Anonymous said...

All I can say is, "WTH?"
Amazing, and to me a shonda.

Fri Jan 01, 01:22:00 PM 2010  
Anonymous Woodrow/Conservadox said...

I suspect this element of halacha has not been applied in our lifetimes, and maybe not in hundreds of years. So maybe its one of these situations where, as the cliche goes, "you had to be there." - that is, the rules may have made sense a millenium or two ago in a society very different from our own.

Sun Jan 03, 04:06:00 PM 2010  
Blogger Shira Salamone said...

Woodrow, I certainly hope you're right that this aspect of halachah/Jewish religious law is no longer applied, and I certainly hope that it won't be applied in the future. It seems to me that I've read complaints from right-wing-Orthodox Israeli rabbis about the halachah's inheritance laws being ignored in Israel.

Sun Jan 03, 07:54:00 PM 2010  
Anonymous jdub said...

This law is not applied. Even among the right wing orthodox, there is a very simple halachic way around it. If I recall correctly, the son simply agrees to forego his portion and gift it to the sisters, and then the will or civil inheritance laws govern (e.g., if the decedent dies intestate). (My understanding is that the son can even be presumed to agree, so there is no real issue.) The Israeli rabbinate may be decrying the ignoring of the fact that there is an halachic step to be taken first, but this is simply gotten around, and has been for decades if not centuries.

It's not a shonda. You can't put 21st Century values on the Torah or Halacha. As you point out, look at Sense and Sensibility. (Although Pride and Prejudice and Zombies is a much better Austen book.) The fact that the rabbis worked out an appropriate solution should wipe out any concern with this. My four kids (three girls and a boy) will share equally, if I have anything left to live after attempting to spend it all before i die!

Mon Jan 04, 10:56:00 AM 2010  
Blogger Shira Salamone said...

Ah, nice work-around. That's good to know. Thanks for the info, JDub.

"The fact that the rabbis worked out an appropriate solution should wipe out any concern with this." Sometimes, one can have faith in the rabbis. Now, if only they could find a way around the more unfair aspects of the laws of gittin/Jewish religious divorce, halachah would be *much* better for Jewish women.

Mon Jan 04, 05:43:00 PM 2010  
Anonymous jdub said...

but they have, the community merely needs to avail themselves of it. the RCA prenup works wonders. If my wife and I get civilly divorced (God forbid), I'm obligated to pay her a ridiculous sum of support. It's a binding contract, enforceable in civil court until I give her a get. No wedding should be performed without it, and there's no reason it can't be entered into after marriage.

There is a way, the community merely needs to adopt it and enforce it.

Tue Jan 05, 08:08:00 AM 2010  

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