Mr. Cohen was a widower in his seventies. He met a widow of similar age, Mrs. Alter, and the two decided to get married.
Before the wedding, Mr. Cohen and Mrs. Alter discussed the monetary arrangements between them. Mrs. Alter owned a house and had other significant assets.
“After my demise, I would like my children to receive my property,” Mrs. Alter said. “I request that we waive our rights to inherit each other.”
“That is acceptable to me,” said Mr. Cohen. “It is reasonably common in second marriages, especially at our age, but it should be legally and halachically grounded.”
“My lawyer said that we can sign a prenuptial monetary contract,” said Mrs. Alter, “waiving our rights to inherit each other.”
“Such a document is legally binding,” said Mr. Cohen, “but I’m not sure that it’s halachically binding.”
“Why not?” asked Mrs. Alter.
“Unlike other monetary areas, which are contractual, and people can usually stipulate what they want, inheritance is automatic,” said Mr. Cohen. “The agreement of an inheritor to waive his rights is not halachically binding.”
“If so, other than a will,” asked Mrs. Alter, “how can I ensure that my children will inherit my property directly?”
“I don’t know,” replied Mr. Cohen. “I suggest that we make an appointment with Rabbi Dayan and discuss the issue with him.”
“That’s a good idea,” said Mrs. Alter. “I’m happy to do that.”
Mr. Cohen and Mrs. Alter met with Rabbi Dayan. “We signed a monetary agreement waiving our rights to inherit each other,” said Mrs. Alter. “Is such an agreement halachically binding?”
“Although a person cannot waive his right to other inheritances,” replied Rabbi Dayan, “the Gemara [Kesubos 83a; B.B. 49a-b] teaches that a husband can waive his right to inherit his wife. This is because the husband is not a blood-relative, but inherits through the act of marriage, or because a husband’s right to inherit may be rabbinic and he can decline the enactment made for his benefit.” (E.H. and Beis Shmuel 90:1)
“However, the Shulchan Aruch and Rama (E.H. 69:7; 92:1,7) rule the husband can do so only before completing the marriage – chuppah, nisuin,” added Rabbi Dayan. “Conversely, it must be done after kiddushin [giving the ring] since beforehand the right to inherit is non-existent (davar shelo ba la’olam). Thus, some write that this option is no longer relevant nowadays that we do kiddushin simultaneous with nisuin under the chuppah, unlike long ago that the two stages were separate.” (Shach C.M. 66:134)
“It seems there’s a problem, then,” noted Mrs. Alter.
“Yes, but despite this, there is a longstanding practice to sign monetary agreements before marriage,” continued Rabbi Dayan. “Such a document appears in Nachalas Shiva [#21], printed 350 years ago. Many achronim struggled with this practice and sought reasons to justify it.”
“How did they justify it?” asked Mr. Cohen.
“Some base the practice on the opinion that one can waive future rights to something shelo ba la’olam, at least with a kinyan,” explained Rabbi Dayan. “Others suggest that after engagement [shidduchin] or just before kiddushin the right is already considered ba la’olam.” (See Rama C.M. 209:8; Chavos Yair #47,50-52; Chasam Sofer E.H. 2:166; Avnei Miluim 92:5.)
“A number of achronim recommend that the monetary agreement be signed or confirmed with a kinyan under the chuppah, along with reading the kesubah,” added Rabbi Dayan. “They maintain that the nisuin is not complete until after sheva berachos under the chuppah or after the cheder yichud, especially a second marriage. Thus, this point in time is considered as between the kiddushin and nisuin and the husband can waive his rights then.” (E.H. 64:5; Pischei Choshen, Ishus 10:34-35; Encyclopedia Talmudis, vol. 25, p. 523)
“In any case,” concluded Rabbi Dayan, “you can solve the issue by drafting a halachic will.”