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Double Inheritance For The Firstborn
Why (and How) Does the Firstborn Get a Double Inheritance?
By Yehuda Shurpin
Question:
I recently had a conversation with a close friend of mine
who just lost his father, and his siblings were working on dividing the
inheritance. He mentioned that according to Torah law the firstborn gets a double portion of inheritance. Why
is that? Also, does the firstborn always inherit double, or are there some
limits to this clause?
Reply:
You’ve touched on quite a sensitive topic, so I would advise
you to tread lightly with your friend when discussing inheritance.
The directive to give the firstborn a double portion is
found in the Book of Deuteronomy: “He [the father] must acknowledge the
firstborn . . . and give him a double share in all that he
possesses, for he [the firstborn son] is the first fruits of his strength; the
right of the firstborn is his.”
Practically
speaking, this means that if there are five sons, you first split the
inheritance into six portions, and the firstborn son gets two portions while
everyone else gets one.
What
makes the firstborn so special that he receives a double portion?
Many
commentaries have offered explanations, but ultimately the halachah is derived from the verse itself.
(As
you’ll see below, some of the reasons would apply equally to firstborn
daughters, or to the mother’s firstborn. Yet the halachic firstborn is the
father’s oldest son.)
Beloved by G‑d
“All firsts are
beloved by G‑d.”
Just
as there is the mitzvah that the first fruits are brought as an offering to G‑d (bikkurim), as is the first of the flock (bechor beheimah), so
does G‑d have a special love for the firstborns, and they are given a double
portion.
In the Father’s Stead
It is the firstborn who stands in the father’s stead,
perpetuating his continued memory.
It
was his birth that made the father into a father, revealing his latent power of
parenthood.
Although
further elaboration is beyond the scope of this article, this is one of the
reasons given as to why it was generally only the sons who inherited, as in
ancient times it was the sons who would carry on the family name.
Property
ownership was generally passed down through the males, and they in turn were
obligated to support their unmarried sisters (that is, unless there were no
sons, in which case the daughters inherited, as in the fascinating incident of
the five righteous daughters of Tzelafchad).
However,
as we’ll discuss later, there is a way to include the daughters in the
inheritance as well.
In the Levites’ Stead
Originally, the firstborns were supposed to dedicate their
lives to the Divine service in the Temple.
Due
to their part in the sin of the Golden Calf,
the Temple service was taken away from them and given to the Levites, who don’t
get a portion in the land.
In
their stead, the firstborns get a double portion, theirs and the Levites.
Paving the Way
The first child born from the mother’s womb paves the way
for all subsequent children. The double portion is an expression of gratitude.
Basic Guidelines
As noted above, the laws of inheritance are derived from the
verse itself. Thus, some of the law’s nuances don’t fully jibe with the above
explanations.
Here
is an outline of some of the basic laws regarding inheritance:
Writing
a Will
One
can choose to distribute his assets so that one son receives a greater portion,
as long as the firstborn still receives his double share.
Trying to word the will so that the
firstborn does not receive his double share is halachically prohibited.
However, one is permitted to “gift” his
assets before his passing, even if there is very little that remains for the
firstborn’s double share.
(Gifts can be used to give daughters a
share as well.)
Nevertheless, one should not gift all his assets, so that the Torah’s rules
of inheritance apply to at least a portion of the estate and are not entirely
uprooted.
In light of this, one should keep in
mind that writing a will according to Jewish law is somewhat different than
according to secular law, and it should be written with the help of a rabbi
knowledgeable in these laws.
Father’s First Naturally Born Son
The
oldest son must have been born naturally in order to receive a double share.
If he was delivered through a cesarean
section, neither he nor any subsequent children have firstborn status.
However, unlike the requirement for pidyon haben, a
previous miscarriage does not disqualify the firstborn from getting the double
inheritance.
Additionally, the firstborn need not be
the mother’s firstborn son.
As long as he is the father’s firstborn
son, born while the father was
still alive, he is considered the
firstborn with regard to the laws of inheritance.
Father’s
Vs. Mother’s Estate
The
firstborn inherits double only from his father’s estate, not his mother’s.
When it comes to inheriting the
mother’s estate, the firstborn is considered the same as all the other
brothers.
On a practical level, this means that
if the father and mother were joint owners of an estate, and the father passed
away first, the firstborn would get a double portion only from the father’s
half of the estate, not the mother’s.
Important
Qualification
The
firstborn is entitled to a double share only of the assets that were muchzak,
meaning actually “in holding” by the deceased at the time of his death.
Assets that were only potentially in
his possession (ra’uy) but not actually in holding (such as
uncollected loans for which no collateral was taken) are distributed evenly
among the heirs.
This last rule has vast implications
for assets such as bank accounts and stocks.
While the details are beyond the scope
of this article, many authorities are of the opinion that due to the technical
details of how bank accounts really work, most have the status of only being ra’uy - potentially in the
father’s possession, but not “in holding.”
Thus, in many instances, any money left
in a bank account would be divided equally between all the heirs, without the
firstborn getting a double share.
In Conclusion
As
you can see, the laws of inheritance can get complex, so it’s important to
consult with a qualified rabbi to ensure that all is done according to Jewish
law.
Although this is an emotionally fraught
time for the children of the deceased, it can also be an opportunity for the
siblings to come closer together as they take care of their parents’ legacy.
There is no greater pleasure for the
souls of the deceased parents than when they see their children living in peace
and harmony together.
And G‑d’s blessing rests where there is
peace.
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