Responsum: On an Inheritance Dispute

Question: A rabbi died, leaving all his assets in the rabbinic court’s control until his heir came to take possession, and his closest heir, who ought rightfully to inherit, is in Portugal, living as a gentile, but there is present before us a Jewish woman, Leah, sister of the aforesaid heir, who had a non-Jewish father, claiming entitlement to the deceased rabbi’s estate, asserting that her brother, his closest heir, being a gentile, is halakhically deemed dead, and that she is the rightful heir in respect of all rights and matters pertaining to her brother. Let our teacher guide us as to whether Leah has the power to wrest the assets from the court’s control.

Response: It appears, superficially, that the law here is in dispute, as it is debated among the great authorities whether an apostate can inherit his father’s estate—for the Mordechai [ben Hillel (1250–1298)] has stated, citing R. Tzedek Ga’on and Rabbenu Ḥananel, that, by Torah law, an apostate may definitely not inherit from his father, whereas others have stated that, by Torah law, an apostate may certainly inherit, save that the court has power to invalidate the inheritance and deprive the apostate thereof. Hence, according to the view that an apostate does not inherit according to Torah law, the assets should be awarded to the heir’s sister, whereas according to the view that an apostate may inherit according to Torah law, one needs to consider carefully the means whereby we can award the assets to the heir’s sister—and it would perhaps be preferable for these to remain in the court’s control until it appears that the man may repent. That is on superficial analysis—but I believe everyone would agree that in our case the heir had long had the opportunity to return to Judaism, for neither his conception nor his birth occurred in a state of sanctity but within a gentile framework—hence everyone would accept that, halakhically, the assets should be awarded to the heir’s sister, for it is as though the heir were dead. And there is no heir here besides his sister, who inherits because there is no brother. I say this since Rivah [Isaac ben Asher Halevi] to Ḥoshen mishpat 283, states: “Where a Jew apostasizes, halakhically his nearest Jewish relative inherits from him,” and Maimonides has written: “And if the court sees fit to deprive him of his assets and penalize him—it may do so; and if the apostate has sons, their apostate father’s inheritance should be awarded to them.” Accordingly, in our case, according to the geonim, logic obviously dictates that the assets be awarded to the heir’s sister, since the apostate has no heir whatsoever, for it is as though he had never existed; but even according to Maimonides who holds that, by Torah law, an apostate inherits from his father, the heir’s sister is no worse than the heir’s sons, and since he states that the assets be awarded to the heir’s sons, even during his lifetime, and notwithstanding his being present before us, we must hold, a fortiori, that they should be awarded to the sister of the apostate’s heir who is not before us, and whose chances of coming are remote. Now although the Tur states: “My father [Asher ben Yeḥiel], the Rosh, has written that it is preferable to place the assets under the court’s control, and if he repents, it should give them to him,” we must say, nonetheless, that even the Rosh stated this only regarding an apostate born in a state of sanctity and who subsequently apostasized, and is present before us, and thus may conceivably repent sooner or later; but with an heir such as this, where he, his father, and grandfather all remained gentiles, where neither their conception nor their birth occurred in a state of sanctity, everyone would accept that the inheritance should be awarded to this woman, Leah, who is Jewish and presents herself before us in the Jewish faith rather than abiding the remote contingency [of the apostate’s repentance]. Because many years have passed when such an apostate could have returned to us, yet failed to do so, his right of inheritance is forfeited, and his sister obtains entitlement. Now although regarding levirate marriage [where the surviving brother of a man who has died is required to marry the widow], we treat those forced into apostasy as Jewish, I maintain that we cannot derive monetary laws from ritual or moral prohibitions, and it was only with the severe, sexual prohibitions that the rabbis were stringent; but in monetary matters, apostates are accorded no significance, for I have found this distinction in the Terumat ha-deshen [by Israel Isserlein (1390–1460)] and in a responsum of R. Simeon ben Tsemaḥ [Duran (1361–1444)], citing R. Jacob Ibn Ḥabib.

Accordingly, logic dictates that the assets should be awarded to the heir’s sister, as several of both the earlier and the later poskim [decisors] maintain that an apostate cannot create a levirate bond, since he is no brother, while others hold that this applies only where he was an apostate at the time of his brother’s marriage, but where he was then Jewish, he does bind her. And in a case like ours, where both the conception and the birth of several generations occurred under a gentile identity, virtually all decisors maintain that he is not considered a brother at all; and accordingly we must say that even those holding that the apostate creates a levirate bond are stringent because of the serious nature of immorality, but in our case—involving money—it would be universally accepted that he is not considered a brother, and may not inherit. And even were a decisor to be found who maintained that he can inherit, or that the money should be held by the court on the contingency that he might repent, that would apply to an apostate born in a state of sanctity, but here, I believe that no one would maintain this. Such cases have come before me time and again, where I have ruled in accordance with what I have stated. And I have now, at the inquirer’s request, formalized this ruling; and have seen fit to be brief, particularly since the outstanding authority of our generation, R. David ha-Kohen, has stated in Bet kerem ḥemed that an apostate does not inherit where a Jewish sister exists, it being plain from his words that even if he remained an apostate for just one hour at the time when the man bequeathing the estate died, he is deprived of the inheritance. He provided a reason for this, that in every case of “a doubt within a doubt,” we adopt the lenient view, and this is such a case. He offered another reason why the sister should inherit in lieu of an apostate brother, since doubt exists as to whether he may inherit, because of his apostasy, whereas the sister is a definite heir, and a doubtful case cannot override a certain one; and a fortiori in our instance, where no doubt whatsoever exists, since both the heir’s conception and birth occurred as a gentile, and there were many years when he could have come to us, yet failed to come, he has long since forfeited the status of a Jew and of a brother in monetary matters, and his sister, an observant Jewish woman, is entitled to the inheritance.