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ANALYSING THE JEWISH LAWS ON SUCCESSION AND INHERITANCE BY – ANMOL TANWAR
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‘ANALYSING THE JEWISH LAWS ON
SUCCESSION AND INHERITANCE’
AUTHORED BY
– ANMOL TANWAR
ABSTRACT
Jews are the ethnic group of people
that have been historically derived from the ancient Hebrews. Jews currently
reside in many different countries the world over and share amongst them
identical practices despite having amalgamated well into the cultures of the
basic population of all these countries. It is a ethno-religious group that
began to disperse from Israel and Judea after the conquest of these respective
countries. Because of this dispersion Jews began to settle in large numbers in
the nearby countries. Though they have adopted most common practices and
regional cultural highlights (for example, many Indian Jewish women wear mangalsutra
and green glass bangles with their own tradition of wearing white gowns during
the marriage ceremony) of the places that they have settled in, they have
retained the distinctive elements and practices of their religion. Despite
their best efforts to merge into the societies that they had settles in, their
own stringent laws of Judaism propelled them to lead a life that was pretty
isolated and community-exclusive. Wherever they went, they lived in closed
communities and primarily engaged in commercial occupation. Israel, the country
with majority Jewish populace was created in 1948.In order to describe and
discuss Jewish laws on succession and inheritance, it becomes imperative for us
to know the source of their laws and the reasons as to why they were framed so
which will be discussed henceforth. Further, the traditional laws on succession
and inheritance and inheritance peculiar to the Jews and their societal impact
have been discussed, followed by the laws in Israel that govern today’s
succession laws of the Jews along with observations on all the loopholes that
it has fixed. Finally, the succession laws that apply to Jews in India have
also been discussed.
INTRODUCTION
Inheritance and its laws are central
to the societal and legal institutions of approximately all societies around
the world. These laws not only lay down the rules for succession of property after
the death of the owner but also help define familial relations to a great
extent. These laws provide legitimacy to familial relations by recognizing
their existence in law. These laws also shape the hierarchical structures of
families. These rules however were made and determined by the familial
structure present at that point of time and became ill-suited for the modern
and post-modern structures. With the change in family dynamics all around the
world, there is a need for the law to adapt and change as well. However, there
is not a lot of change that can be seen. The Indian Succession Act of India
caters to the Jewish community at large and though it differs from classic
Jewish law to a great extent in terms of equal treatment of men and women, it is
unable to face the challenges created by the modern and post-modern world.
SOURCE OF JEWISH LAW
The Jewish law is very different from
the law of the state of Israel (which has a majority population of Jews.
Israel, in 1965, passed a widely secular piece of legislation that is
comprehensive called the Succession Law that embodies within itself a variety
of the aspects of the Western Law and doesn’t necessarily include the
traditions that are exclusive to the Jewish community.
The Jewish law, traditionally called Halakhah has its roots in Torah. The
content or more specifically the tenets are said to be conveyed to Moses,
coupled with a huge set of oral laws that have been passed down from
generations galore. Wherever there have been inconsistencies, things have been
fixed through the process of midrash,
which is a method of interpretation and construction. The oral laws were
eventually recorded on written platforms by Rabbi Judah the Prince. This was
called the Mishnah. The third
tractate of the fourth order, Baba Bathra
deals with aspects of inheritance and succession. Post this, with time the
Jewish law has undergone significant changes and inclusions as according to the
time it was applied in and used in. Some of these changes also include commentaries
which make Jewish laws much more complex to comprehend. The Jewish scholars
have had many intellectual debates regarding the ever – changing personal law
for Jews. As one of the scholars puts it, Jewish law is a concoction of the laws
laid down in the Scripture with interpretations and amplifications thereof in
Talmud and Midrash and the reforms and innovations superadded by the Talmudical
law, the post-Talmudic codes, the Commentaries and the Responsa, the customary
laws and the takkanot of the various communities, and lastly, the rational and
the ethical principles deduced from them[1].
TRADITIONAL JEWISH LAWS ON
SUCCESSION AND INHERITANCE
Most of Jewish laws are derived from
biblical references and illustrations rather than from just exclusive framed
directions or rules regarding succession. The essential focus of these biblical
passages (from where these laws are sourced) seem to be on the retention of the
tribes of Israel, by effectively ensuring that the property is passed down and
maintained in the patrilineal line. Along with the discussion of very basic
traditional inheritance laws, the disputable facts and loopholes have also been
discussed with focus on how inheritance works for the women in this ethnic
group.
The seminal Biblical source for the
laws on succession is contained in Numbers
27:8-11 and it conveys, if a man dies with no sons, but has a daughter then his
entire property is passed down to the daughter. If he has no children, his brothers
and sisters will be entitled to his property. If he doesn’t have brothers and
sisters, then his property will go back into his father’s brethren’s
possession. And if none of these above mentioned exist, his property will be
succeeded by his nearest kin. This rule, seems to exclude any female heir
except for a daughter, this also being subject to a condition that she have
male siblings. This rule is a very rudimentary form upon which the Jewish law
is formulated (in essence of Baba
Bathra).The Baba Bathra has its subjective interpretation of this
passage and makes an attempt to fill the unwritten gaps and amend certain
loopholes. It fixes the confusion regarding precedence for example, and puts
forth that, as a general rule: whosoever has precedence in inheritance, his
offspring have also precedence. The father, thus has precedence over all of his
offspring.[2]
One of the significant issues with these
laws is the clarity of the order of succession. One such question arises when,
for example, if a father is survived by two persons, his daughter and his dead
son’s daughter, who will procure the property? In such a situation, the dead
son’s daughter inherits the entire property and the daughter gets nothing. All
of these discussions are included in the Talmud.[3]Provisions
that enable a daughter to inherit property were also brought about by certain
recorded incidents and was never in fact present in the original tenets.
The story of Zelophehad’s daughters
was apparently since when the daughters began to be deemed as qualified to
inherit property from their fathers.[4]
This was a very late development. The Jews traditionally preferred to keep the
property within the tribe and daughters would usually be married off to men of
other tribes, which makes them outsiders, which in turn destroys the very
essence of keeping the property within the tribe. Nevertheless, there is still
the question that the modern scholars keep asking, regarding the clarity over
priority of makes over females throughout the entire order of succession. The
Jewish law itself describes the order of succession as:
“a parentelic system, conferring the
right of inheritance on all kin of the deceased in the agnate (paternal) line
of descendants and ascendancy”.[5]
Eventually, the Rabbis contributed
significantly into the understanding of the order of succession. They
interpreted and enumerated the rules with increasing clarity with each passing generation.
Thus, the explicit order of succession in the Jewish Law of Inheritance was of
such order: The son, his descendants, the daughters, the daughters’ descendants,
the father, the brothers, the brothers’ descendants, the sisters, the sisters’
descendants, the grandfather, the father’s brothers, the brothers’ descendants,
the father’s sister, their descendants and so on. Evidently the males are more
favored over females in this law. In fact, the Jewish law of inheritance has
inherently weaved into itself three ways in which it favors men over women.[6]Primarily,
the daughters though entitled to inherit property after considerable amount of
debate and backlash, their inheritance of the entire of their father’s property
is subject to the strict condition of her having no surviving brothers.
Secondly, the mother her kin are never considered a party to succession of
property. They cannot have the rights of an heir, despite being close
relatives. Thirdly, the husband always inherits from the wife but the wife cannot
inherit from the husband.
This discriminatory disposition has,
by and large, mitigated in the modern day adaptation of the Jewish Laws for
succession. The idea of wills and testaments were always alien to the ancient
Jews[7],
as the method and who the property would be inherited by was already determined
by the stringent societal laws formulated and everyone had to abide by it. But
of late, testamentary bequests and devises have been employed to soften these
rules a little. The Baba Bathra
portrays testamentary disposition of property and a means of abrogated the
framed order of succession.[8]
However, men are allowed to give away
property during their lifetime. Though the orthodox observation of piety does
not encourage the giving away of property, this action is not explicitly
prohibited in the written laws. These are three different ways to ‘gift’ away
property in three ways, an irrevocable gift of property in which the donor may
retain the right to a usufruct during life (mattenat
bari), gift made in contemplation of death (mezavveh mehamt mitah), and a gift on the death bed (mattenat shekiv me-ra).[9]
SPECIFIC RULES OF INHERITANCE FROM
A MARRIAGE
Husband from a wife: As per tradition, if the wife
predeceased the husband, then the husband had an undisputed entitlement to the
wife’s entire estate and whatever she brought with her as dowry.[10]The
father of such sons who lost their wives had to ensure that they got the ketubah along with their share from his
own property.[11]This
methodology reeked of unfairness, especially, when it came to instances of marriages that were of very short durations,
amendments were made to this effect of mitigating the exercise of total
inheritance by the husband of all of the wife’s estate. Takkanot , an enactment to enable the calling for return for the
entire dowry material of the wife to the wife’s family if the wife passed away
childless within a year of marriage and one-half of the dowry if the wife died
childless within two years. [12]
Wife from a husband: Inheritance of widows has not even
been mentioned in the Bible. Under the Jewish law of marriage though, a widow
is entitled to receive her ketubah amount
from the husband’s estate.[13]Apart
from the ketubah amount to be paid, the widow is entitled to maintenance
from her husband’s heirs. Eventually the law provides that, the heirs can
redeem themselves of the obligation to maintain the widow by giving her ketubah from her husband’s property.[14]
CURRENT POSITION OF JEWISH
SUCCESSION LAWS
In order to understand the current
status of the Jewish succession laws, it becomes imperative to be familiar with
the changes in geography and ethnicity that took place over time. Despite all
the changes and adaptations, the characteristic feature of Jewish law of
succession- discrimination in favor of male issue, still stood very strong. The
Jewish people have as per records gone through forming Jewish majority states
twice throughout the course of history. Each time they have formed a majority
state, most of their laws have undergone fundamental transformations,
especially crucial ones like succession laws. Current laws that govern Israel
are essentially the product of contemplations and improvisation that embrace
the traditional Jewish law as well as keeping it secular. The Jewish autonomy
has considerably reduced over the community’s authentic laws and the
flexibility with which they used to exercise the same. With the formation of
Israel into a secular state that houses many other religious and ethnic groups
other than majority of Jews in the country. Thus the legislations regarding
succession are framed to accommodate the general interest with minimal
imposition by the state to obey rules. The Succession Law of 1965 in Israel
governs succession and property rights and this legislation has jurisdictions
over the estate of any individual who had been residing in Israel at the time
of their death. There are two ways in which property rights are recognized in two
ways, testamentary and intestate succession. The rules contained the succession
law mentions the persons who are eligible to be heirs and the order of
precedence. The will or the testament is basically an individual making his
customized decision regarding his property. Making wills is not essentially a
concept that is embraced by the orthodox Jewish succession laws, but sometimes
the rules are bent to enable changes like property rights to female heirs which
are not provided for in the original text of the Jewish laws. The validity of
the will is determined by its execution according to statutory formalities,
along with the signature and the required attestation. Adding to this the
testator must be mentally capable, adult and free from duress, fraud and undue
influence.[15] Its
when the person attains demise without formulating a testament, will the state
come into the picture with intestate succession. Most laws of intestate succession
encapsulate the essence of Jewish laws of inheritance, though gender discrimination
has been successfully overcome. Intestate succession in Israel puts much focus
on the expressive function of the legal structure in general and intestate
rules in particular, the suggestion here being that, while making the intestate
rules, the lawmakers always consider the different values, normative
consequences, and expressive function of the rules. Section 55 of the
succession law, entails what exactly a family in Israel entails. This becomes
essential to determine the distribution of property rights in cases where there
is no direction by a testament. The rules, thus, direct the entire estate to
the family. Personal circumstances and discretion become irrelevant during
application of these rules. According to Israeli law, the family is composed of
two spheres; one being the dynastic model, which is based on kinship, the other
is the conjugal model, which is based on partnership. Descendants are primarily
entitled to the whole estate, and they take everything that’s left over after
passing over a designated portion over to the surviving spouse, should there be
one. The development in succession laws is also tangentially affected by the
societal restructuring with regard to family. Nuclear families are the norm
which implies that descendants are preferred to ascendants. The multi generational
family has been regarded redundant in this day.[16]If
the owner has descendants or parents, the spouse is entitled to half of the
estate. If there are only siblings and their descendants or grandparents who
outlive the decedent, the spouse is entitled to two-thirds of the estate. In
addition, in this latter case, if the spouse had been married to the decedent
for at least three years and the couple had lived together in an apartment
owned by the decedent, the spouse is also entitled to the apartment. When the
owner has no descendants, siblings, parents, or grandparents, the spouse takes
the entire estate (Succession Law 1965, Section 11). The spouse also receives
the chattel (movable property), including the car, which belonged to household.
Thus it becomes apparent that modern emphasis on conjugal relations in terms of
property rights is new development given how discriminatory Jewish law had
been. The emphasis on dynastic relations which have been prominent is slowly
fading away. The secular law, fixes so many such loopholes that pre-existed in
the Jewish succession laws. It clarifies the position of adopted children and
step-parents which wasn’t mentioned in the religious tenets of Judaism. Adopted
children can inherit only from their adoptive parents but not from their
adoptive parents, which is a little counter intuitive but there was an
amendment to this effect in 2012, making the adoptive child/children eligible
to inherit their adoptive relatives property. Added to this, adoptive children
can also inherit from their biological parents. However, a partner cannot be
considered a parent to a child that is not born to then biologically unless the
entire adoption procedure is complete for inheritance purposes. While the
kinship rules are quite stringent, the laws are relaxed on partnership.
Cohabiting partners are entitled to thesame share of property as a married
couple is, given that neither of them was married to another person during the
time of the decedent’s death. The opinions about a same sex couples are pretty
ambivalent but the atmosphere is that of gradual acknowledgement. This can be
sense by a district court’s decision to consider a cohabiting same sex couple
eligible for purposes of inheritance. Post this the supreme court decided
positively on the registration of gay marriage in one case, thus setting the
tone for eventual property rights to be granted, recognized and exercised.[17]
JEWS IN INDIA
The Jewish community in India is one
of the large numbers of ethnic groups who had come from outside the borders and
now have considered India their permanent home.
They blended very effortlessly into
the culture and incorporated their own traditional practices into the ones in
India. Currently India houses around 6000 Jews who have completely accepted the
Indian identity. They have contributed significantly to the entrepreneurial and
cultural arena. There are three branches of Jewish identity that exist India,
the Cochin Jews, the Bene Israeli Jews and the Baghdadi Jews. They are
differentiated majorly according to the chronological order of the arrival on
the subcontinent and the identity they formed in the places they settles as per
the functional historical forces at the that respective point in time.
SUCCESSION LAWS FOR JEWS IN INDIA
There is no explicit legislation that
governs the succession of the Jews in India. It is a considerably small
minority and is governed by the secular succession act which is the Indian Succession
Act, 1925.
The reformed and regulated version of
the succession act of 1865, the Indian Succession Act, 1925 amalgamates the Hindu
Wills Act, the Probate and the Administration Act and also the Parsi Intestate
Act. It is indicated in the Preamble of this Act that it intends to consolidate
the law applicable to intestate and testamentary succession. It is greatly
influenced by the rule of English Law. This Act covers for succession of all
communities saving the Hindus and the Muslims. The Indian succession act, 1925
applies to people of European Origin, Indian Christians, Jews, Parsis, Jains,
and Sikhs.
Post the passing of the Indian
Succession Act 1865, it was strongly followed that Jewish personal laws would
not be recognized for succession through testament and intestacy.[18]
The Bombay High Court, upheld the Jewish law in a case in 1875, against the
provisions of the Act of 1865, where a suit was filed by the wife for
dissolution of the marriage.[19]Thus
ever since this case, courts have usually let the Jewish personal law prevail
over such matters.[20]
CONCLUSION
The Jewish laws of succession depict
a clear affinity toward protecting the property within the tribes, a
characteristic trait of fiercely keeping their property exclusive. Women were
barely supported with inheritance until a very long period of time. But upon the formulation of secular laws the
inheritance laws became easier on the general population (though the laws
regarding inheritance by kinship remains stringent). The importance of
inheritance through conjugal ties has been recognized. All in all, many issues
with ancient Jewish laws, like gender discrimination, spousal rights, rights of
adopted children alike have been rectified as much as possible.
Israel as state of late has claimed
to be a Zionist state, and the recent developments of Israel passing the Nation
State Bill shakes the secular foundations upon which the nation had seemed to
build itself. This change has all possibilities of posing a veiled threat to
all the laws that were framed with secularism as a background.
Apart from these potential
discrepancies, the Israel Succession Law. 1965 is a great improvement on the
ancient orthodox Jewish law.
BIBLIOGRAPHY
1. Haim
H. Cohn ‘Jewish Law in Ancient and Modern Israel’ (1971).
2. Uri
Yadin, ‘The Proposed Law of Succession’ (1953).
3. Elon
Menachem ‘The Principles of Jewish Law’ (1975).
4. Mary
f. Radford ‘The Inheritance Rights of Women Under Jewish and Islamic Law’
(2000).
5. Richard
H. Heirs ‘Transfer of Property by Inheritance and Bequest in Biblical Law and
Tradition’ (1994).
6. Rev.
Dr. M. Meilziner ‘The Jewish Law of Marriage and Divorce in Ancient and Modern
Times’ (1987).
7. N.S.
Hecht ‘An Introduction to the History and Sources of Jewish Law’ (1996).
8. Alina
Kofsky ‘A Comparative Analysis of Women’s Property Rights in Jewish Law and
Anglo-American Law’ (1988).
9. Succession
Law, 1965.
10. Shelly
Kreiczer-Levy ‘Succession Law in Israel: Individualism and the Family’ (2013).
[1] Haim H. Cohn, ‘Jewish Law in
Ancient and Modern Israel’ 1971.
[3] TALMUD BAVLIBava Basra 115b.
[4] Uri Yadin, ‘The Proposed Law of
Succession’ 1953 2(2) OUP
143 accessed 14 August 2023.
[5] Elon Menachem ‘The Principles of
Jewish Law’ 1975 446.
[6] Mary f. Radford ‘The Inheritance
Rights of Women Under Jewish and Islamic Law’ (2000) 23(2) BCICLR
accessed 19 August 2023.
[7] Richard H. Heirs ‘Transfer of
Propert by Inheritance and Bequest in Biblical Law and Tradition’ (1994) 147.
[9] Elon Menachem ‘The Principles of
Jewish Law’ (1975) (453-455).
[10] Rev. Dr. M. Meilziner ‘The Jewish
Law of Marriage and Divaorce in Ancient and Modern Times’ (1987).
[11] Elon Menachem ‘The Principles of Jewish Law’ (1975)
380.
[12] Rev. Dr. M. Meilziner ‘The Jewish
Law of Marriage and Divorce in Ancient and Modern Times’ (1987) 255; Elon
Menachem ‘The Principles of Jewish Law’ (1975) 448.
[13] N.S. Hecht ‘An Introduction to the
History and Sources of Jewish Law’ (1996) 295.
[14] Alina Kofsky ‘A Comparative
Analysis of Women’s Property Rights in Jewish Law and Anglo-American Law’
(1988) 333.
[15] Succession Law, 1965.
[16] Shelly Kreiczer-Levy ‘Succession Law in Israel:
Individualism and the Family’ (2013) 28(2) ISR
accessed on 24 August 2023.
[17]3. HCJ 3045/05 Ben Ari v. Director of Population
Administration (2006) IsrSC 61(3) 537.
[18] Gabriel v. Mordakai, 1 Cal. 148
[19] Benjamin v. Benjamin, 50 Bom. 369
[20] J. Duncan M. Derrett ‘Jewish Law in South Asia’
(1964) 13(1) CUP < https://www.jstor.org/stable/756108> accessed on 29 August
2023.
Article Information
ANALYSING THE JEWISH LAWS ON SUCCESSION AND INHERITANCE BY – ANMOL TANWAR
Authors: ANMOL TANWAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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