Our Wills and the Written Letter of the Torah Law

1. Is Torah Inheritance Relevant in Our Day and Age?

Most – if not all – people write wills that include allocations that are different from the default rules of inheritance according to the Torah (i.e.: splitting the estate equally between the sons and daughters, giving an equal share to the firstborn son etc.), which automatically raises the obvious question:

If the Torah actually dictated in detail the proper order of inheritance, what justification do we have to avoid it and come up with different estate plans?

Is it actually OK to do that, and if so: Why?

2. Nothing is New Under the Sun

So first of all: It's OK.

This isn't a new phenomenon. For many hundreds of years Jewish families have been distributing their state equally between all there children, sons and daughters alike, husband to wife and vice versa.

3. Rav Herzog quotes Shai Agnon

Former chief Rabbi of Israel, Rav Isaac Herzog זצ"ל, in his monumental book "תחוקה לישראל על פי התורה" quotes "the renowned author, who's piousness precedes his wisdom, R' Shmuel Yosef Agnon" who relayed the story about an Admo"r in Galicia who decided to leave his assets to his sons only and leave his daughters out, as the literal letter of the Torah law. He continues, that this conduct was considered so unusual and bizarre that his act became "the talk of the whole county" for many years…

But still:

WHY is it OK? If the Torah says A, why should we be trying to accomplish B?

4. The Case of Navot and King Ach'av

An interesting approach to this question can be derived from the famous case of Navot the Jezre'elite and King Ach'av (Kings 1, 21).

Ach'av, whos' winter palace resided just above Navot's vineyard, tried to convince him to give it up in substitute for a better piece of real estate, to which Navot adamantly replied: "G-D forbid that I should give up to you what I have inherited from my fathers!".

5. Inheritance or Legacy?

In those days, families were connected to a specific piece of land. The estate was the legacy. A family's connection to the land symbolized the living legacy of the family going down from one generation to the next.

In that context, the Torah inheritance of land in Eretz Yisrael would continue as a legacy in the family – namely to the sons, who in those days were continuing the family line, and not to the daughters, who usually married into different families (and who's husbands received the estates of their own families).

Therefore, in todays' day and age, when children are not connected to their parents' house or apartment – which is just another monetary asset – giving it to the sons only doesn't create any "legacy", or have any economic justification. The daughters could use the money just as much as the sons.

6. "Token" Torah Inheritance

Some people leave in their will a token amount to be distributed according to the Torah default.

Although R' Moshe Feinstein promoted this conduct, most contemporary rabbinical authorities hold that this isn't necessary.

(and most importantly, you'll need halachic supplements for your wills – in any case – in order to validate the distribution of the majority of your estate which is not being split according to the Torah default).

It is important to note that if you do include a clause like that in your will, it may complicate the probate process of your will after 120. 

Since the clause refers to "Torah Law" or "halacha", the local registrar will require the heirs to produce an official letter from a Dayan laying out who the "Halachic heirs" are in relation to the specific family situation relating to the will being probated.