Mr. and Mrs. Lerner lived modestly, and raised their two sons, Reuven and Pinchas, and their daughter, Miriam, in a cozy rental apartment. There was never talk of wealth, but plenty of emphasis on values – honesty, kindness, and yashrus.
When their parents passed away several months apart without a will, the children met in the living room they had grown up in.
“There’s no house,” Pinchas noted, glancing at the folder Reuven had brought.
“They left behind some savings, though,” said Reuven. “There’s a life insurance policy, an investment account, and a pension fund. Nothing huge – but still something.”
“We all live comfortably,” said Miriam. “I’m happy to let the estate be divided according to halacha, even though that means I will lose out. Our parents always stressed the importance of halacha.”
“And I’m willing to let Reuven take his double share as the bechor,” added Pinchas.
“They named us all as equal beneficiaries on most assets,” Reuven noted, holding up the forms.
“In that case, maybe I should get my share,” Miriam suggested gently. “The companies legally treat these as payouts directly to the named beneficiaries.”
The siblings paused. They all respected halacha – but also wanted to honor their parents’ intentions.
“Are these policies considered part of the estate?” Reuven asked. “The investments certainly seem so.”
“I don’t want to take what I’m not halachically entitled to,” Miriam continued. “But I also don’t want to turn away unnecessarily something our parents meant for me to receive.”
The three siblings met with Rabbi Dayan to discuss how to proceed. They asked:
“How should we divide assets that have stated beneficiaries?”
“Even when dividing the estate according to halacha, the beneficiaries of policies and financial accounts will usually be entitled to their designated share,” replied Rabbi Dayan.
“Regarding life insurance policies, the payment is not viewed in halacha as inheritance, but rather as a contractual agreement between the person and the insurance company to pay the beneficiaries in the event of death. Therefore, there is also no concern of ha’avaras nachala – transfer of inheritance from the halachic heirs – to name beneficiaries who are not halachic heirs, because the person never received this money in his lifetime and it is not part of his yerusha (Pischei Choshen, Yerusha 1:[65]).
Moreover, even investments, which do belong to the person in his lifetime, should ideally be divided according to the beneficiaries. Although these investments are part of his estate, since the person designated beneficiaries, the principle of mitzvah lekayem divrei hames applies.
The Gemara (Kesubos 70a; Gittin 14b) teaches that when a person entrusted money with another and gave directions for how to disburse it after his passing, it is a mitzvah incumbent on the heirs – enforceable by beis din – to follow his directives (C.M. 252:2; Ketzos 252:3).
The poskim apply various limitations to this rule, amongst them: the money must be entrusted in the hands of a third party (ibid.); the person gave the instructions at the time that he entrusted the money (Rema, ad. loc.); the money was entrusted initially for the beneficiaries, not primarily for the person himself (Nesivos 252:2); the heirs are over bar mitzvah and obligated in mitzvos (see Machane Efraim, Zechiya #29).
One or more of these limitations would restrict the application of mitzvah lekayem divrei hames for many investments. Nonetheless, Knesses Hagedolah (Hagahos Beis Yosef 252:21) cites from Maharashdam (Y.D. #203) that while in these cases beis din cannot impose upon the heirs to fulfill the deceased’s directives, it is still a mitzvah on them to fulfill the directives.
Thus, because Miriam was listed as an equal beneficiary of the life insurance policy and the investments, she is entitled – also according to halacha – to her designated share. Similarly, Reuven, the bechor, is not entitled to a double portion in these assets, only his stated share.
“This is in addition to the rationale that the bechor is entitled to a double portion only in assets, real estate, and moveable property that the deceased actually held at the time of death,” concluded Rabbi Dayan, “but not money due him (ra’uy), including loans that he granted. Most poskim consider money deposited in the bank or other financial institutions as ra’uy.” (C.M. 278:3; Pischei Choshen, Yerusha 2:36).
Verdict: Even when dividing according to halacha those assets for which the deceased established beneficiaries after his death, the heirs should follow the deceased’s directives.
