Jewish and American Inheritance Law: Commonalities, Clashes, and Estate Planning Consequences

Abstract

Jewish inheritance law and American inheritance law share significant similarities. Each prescribes specific distributive rules for those who die intestate and each permits a person the autonomy to elect different distributive rules through a variety of estate planning vehicles. At the same time, each imposes parameters – obligatory in the case of American law and largely hortatory in the case of Jewish law – on the exercise of such autonomy. In America, the Jewish and secular legal systems can interact with, or contradict, each other in ways that produce unanticipated and undesired results. As a result, effective estate planning requires Jews, and the legal and financial professionals who advise them, to acquire a working knowledge of both the Jewish and American rules. This article provides this background by exploring Jewish inheritance law not only through the lens of comparative law but also from an estate planning perspective, particularly, but not exclusively, with respect to planning for spouses and children.

This article discusses a number of planning options. Depending on the circumstances of a specific case, practical considerations may recommend one technique over another. Nevertheless, Jewish law authorities disagree as to the efficacy of the various alternatives. Therefore, in order to best advise a given client, it may be necessary, with the client’s consent, to consult with the particular religious authorities upon whom the client and his or her intended beneficiaries.

Keywords: beneficiary, Bible, comparative law, dying declaration, estate, estate planning, halakhah, inheritance, inter vivos, intestacy, intestate, Jewish, Judaism, Last Will and Testament, Oral Law, religious, secular, tax, testament, Talmud, testator, Torah