INHERITANCE LAW IN THE BIBLE is an outstanding example of discrimination against women: In most cases, men inherit all, women nothing.1The one exception is that if there are no sons, the daughters inherit all (Num. 27:8). It is likely that this distinction made sense in the time of the Bible, given the patriarchal and tribal nature of society and the emphasis on possession of land. By passing land from one generation of men to the next, the tribe maintained its holdings.2In a matriarchy, however, passing land from one generation of women to the next would have worked equally well. The rabbis, heirs to the biblical system of law but living in a different set of social and economic realities, found these rules inappropriate for their times. As Reuven Yaron notes, the rabbis introduced changes because of “the unsatisfactory state of the law of succession, as far as daughters and widows were concerned.”3Reuven Yaron, Gifts in Contemplation of Death in Jewish and Roman Law (Oxford: Clarendon Press, 1960), 18. A close reading of their statements on the subject reveals that while still adhering to the letter of the biblical law, they, in essence, transformed it. They did not alter it to the extent that women inherited equally with men. But they did award a woman a sizable portion of her father’s wealth and they made it possible for him to choose to give her any amount he wanted. Their principal strategy was to encourage fathers in their lifetime to give their daughters large gifts, which, although technically not “inheritance,” nonetheless helped right the gender imbalance. In this area of law, more than in most, the rabbis seem halakhically self-aware, with respect to both their goal of giving a woman a portion of her father’s estate and their realization that they needed openly to behave contrary to what the Torah dictates.
I am not suggesting that it was the rabbis who first decided to give women a share of their fathers’ and husbands’ wealth. In the ancient world, two sums of money were associated with women leaving home to get married: the bride-price paid by her husband to her father and the dowry given by her father to her for use in her own home (although her husband was entitled to any income accruing from it). The bride-price, assuming her father kept it for her should she ever return home,4Cf. Gen. 31:15: Rachel and Leah say about Laban, their father, “We are like strangers to him; he sold us [in marriage] and has eaten our money.” They presumably mean that he was supposed to keep at least part of the bride payment for them. See the Anchor Bible, Genesis, commentary by E. A. Speiser, 245. allowed her to “inherit” a portion of her husband’s estate. The dowry allowed her to “inherit” a portion of her father’s estate. So, even in the Bible, provided these two payments were made, a woman was not excluded totally from the circle of heirs. We also have evidence, from the time of the Bar Kokhba rebellion (about 130 C.E.), contained in documents found in the Judaean desert, that giving large dowries to daughters when they married, apparently as a way of circumventing biblical inheritance law, was common practice.5In reporting on Greek documents found in the Judaean desert, Hannah Cotton suggests that a deed of gift that a woman received from her father upon marriage implies that such a document was the only way to ensure that she received part of his estate. This would correct the inequities of the rules of inheritance. “Women’s Documents from the Judaean Desert,” lecture, Israel Museum, May 19, 1996. As for the Greco-Roman world, women could inherit from husbands, fathers, and all other male relatives.6Yaron gives additional reasons for the introduction of gifts in contemplation of death, beyond the unsatisfactory state of the law with regard to daughters and widows: the desire of people who had accumulated wealth to dispose of their property as they saw fit; growing contact with the Hellenistic world, where such freedom had long been established (Gifts in Contemplation of Death, 18). He suggests that the introduction of the changes occurred about 100 B.C.E.
The reason that inheritance law comes closer than any other area in Jewish law to eradicating significant differences between men and women may have to do with the beneficiary’s being a daughter, not a wife. In the rabbinic period little change can be noted in the law that wives do not inherit from husbands, although husbands are sole heirs of wives. Despite men’s preference for sons over daughters, they seemed to love their daughters once they had them.7See statements on fatherly love, BT BB 141a. See also Yaron (Gifts in Contemplation of Death, 16), who cites an Aramaic document from Elephantine, Egypt, from 404 B.C.E., in which a father bequeaths half a house to his daughter Yehoyishma “in affection, because she did maintain me when I was old in days.” And part of loving them was being concerned about their future, which meant, among other things, awarding a daughter a not-insubstantial share of her father’s assets. It is also true that inheritance is primarily a monetary matter, not a marital or ritual issue. Change is therefore easier.8See note 22.
We read in Numbers 27 (1–11) that when a man dies, his property passes to his sons. Only if he leaves no sons does it go to his daughters. If there are no daughters either, the property goes to his brothers on his father’s side, then to his father’s brothers, and so on. The rules of intestate succession are agnatic, which means that the estate is to remain in the hands of the decedent’s relatives on his father’s side. He is the agnate of his own sons and daughters.
I do not think that the Bible could make a clearer statement of the disenfranchisement of women with respect to the transfer of property from one generation to the next. Daughters inherit nothing, except in those cases in which there are no sons.
What triggered the Bible’s presentation of inheritance laws was the claim of Zelophehad’s five daughters. He died in the desert, and these women, anxious to keep their father’s name from being blotted out, are the first to raise the issue of daughters’ inheriting when there are no sons—not exactly a feminist demand. After acknowledging the validity of their limited request (Numbers 27:7), God dictates to Moshe a full set of inheritance laws. Some time after this victory, the men of Menasseh complain that they stand to lose because the general tribal holdings will be diminished if the women marry out of the tribe (36:1–4). After God bids Moshe to tell them that they, too, like the women, are making a valid point, God calms their fears by limiting the women’s choice of mate to men in their own tribe (36:6). Thus, these five women lose a measure of freedom, even though they succeed in saving their father’s name. On this note the book of Numbers closes, suggesting, perhaps, a major theme in human relationships—how to solve problems so that no one feels that he loses when the other gains.
It is remarkable that the same scene is replayed in the Mishnah.
… If someone died and left sons and daughters: If the estate is large, the sons inherit and the daughters are maintained [i.e., given basic needs] from it; if it is small, the daughters are maintained from it and the sons go begging on the doorstep. Admon9The Mishnah says that Admon, a judge in Jerusalem at the end of the period of the Second Temple, issued seven rulings. This is the first. objected: Just because I am a male, should I suffer a loss? [בשביל שאני זכר הפסדתי] Said Rabban Gamliel: I favor Admon’s opinion. (M Ketubot 13:3)
Admon’s cry of anguish, “Since when should a man find himself discriminated against?” is ironic in the one instance in Jewish inheritance law in which women are favored over men. His cry resonates with that of the men of Menasseh. Both complaints are validated—the men of Menasseh’s by God and Admon’s by Rabban Gamliel. More dramatic terms would be hard to find to express the strong resistance of men to giving women greater rights.
It seems to me that since Admon formulated his sense of injury in such general terms, he is talking about more than just the situation at hand. He is likely to be responding to the trend of rabbinic inheritance law, and marriage and divorce law too, to give women more and more benefits, often at the expense of men’s. Since Admon was an early Tanna, we cannot say for certain that he had already witnessed considerable change. But he may have seen that the introduction of the ketubah granted women extensive privileges that they did not have before that time.
Returning to the Bible, we find one more fascinating reference to this matter. At the very end of the book of Job, when it is stated that he had a second set of children, seven sons and three daughters, and the names of only the daughters are given, the narrator goes on to say that “their father gave them a parcel of land [נחלה] among their brothers” (Job 42:15). The meaning is rather clear: Despite women’s disenfranchisement by biblical inheritance law, Job awarded his daughters, in his lifetime, a share of his real assets!10Athalya Brenner points this out in her edited volume, A Feminist Companion to Wisdom Literature (Sheffield: Sheffield Academic Press, 1995), 57–58. She calls it the deconstructive nature of the epilogue.
Although the Mishnah accepts the biblical rule that sons inherit all and daughters nothing, it speaks at length of the monetary arrangements accompanying marriage, in particular, the sums of money that a woman brings to her marriage.11The noun parnasah (dowry) does not appear in the Mishnah or in the Tosefta but that is what is being described. The verb lefarnes suggests that fathers who marry off a daughter are to give her a sum of money as a dowry. The expression pasak lah means, according to Albeck, that he stipulated for her to receive a certain amount as a dowry. The Mishnah also uses the phrase katvu lah (Ketubot 6:6), “they wrote for her,” which means that they—her mother or brothers—gave her such-and-such items for a dowry. This equivalence of writing and giving is extremely important in the analysis of the passage in BT Ketubot 82b (in Chapter 3) about the transformation of the ketubah from an advance to a deferred payment. The “writing” may refer to a written record of the dowry for which the husband accepts responsibility or to a written promise by the father to pay up upon marriage, not before. See also BT Ketubot 52b, further on in this chapter, where the term “to write,” as used by R. Yohanan, means “to give.” See notes 14 and 15.
If the father of the bride stipulates that he will give his daughter’s husband a sum of money [a dowry] … (M Ketubot 6:2)
If she stipulated to bring in [a dowry] of 1,000 dinarim [zuz], then he [the husband] stipulates [in the ketubah], in corresponding fashion, that he owes her 1,500 [because he will invest these moneys and make them increase; it is the principal plus profit that he obligates himself to return to her upon dissolution of the marriage].… (M 6:3)
If a father marries off his daughter without stipulating [a dowry], he may not give her less than 50 zuz. If he stipulates that he will give her nothing,… the groom must provide her with the clothing she needs before she leaves her father’s home. And similarly one who marries off an orphan, he should not give [her a dowry of] less than 50 zuz. If there is communal money available, he should give her a dowry according to her station in life [לפי כבודה]. (M 6:5)
If a minor orphan12In rabbinic usage the word orphan connotes a person who has lost either one parent or both. was married off by her mother or brothers with her consent,13M Yevamot 13:2; Albeck, “her knowledge” (59). and they wrote14“Write” and “give” appear to be interchangeable in this context. Writing refers to the document outlining the husband’s receipt of the moneys and his acceptance of responsibility for them. See next note. her [a dowry] of only 100 or 50, when she matures she may claim from them what was fitting for her to receive.
R. Judah says: If [a man] married off his first daughter, the second should receive [after his death] what he gave the first [in his lifetime]. But the Sages say: Sometimes a man is rich and grows poor or poor and grows rich; rather, one assesses the value of his property and gives her a dowry accordingly. (M 6:6)
It is clear from these mishnahs, 6:5 in particular, that a father is expected to give his daughter a sum of money upon her marriage. If he refuses, it is the groom’s responsibility to provide her with a trousseau before she leaves her father’s home. Furthermore, it makes no difference what the husband does with the dowry money, as long as he accepts responsibility for it and returns it to her when the marriage dissolves. M 6:6 and also 6:5 indicate that the amount of the dowry is to vary with the relative wealth of the father. The larger his holdings, the larger a dowry he is expected to grant her.15As time passed, the groom’s obligation to return the dowry to the bride at the termination of the marriage, as well as to pay her the additional sums that he owes her, were all written up in the ketubah itself. Cotton (“Women’s Documents from the Judaean Desert”) doubts that the common practice of Jews at the time of the Bar Kokhba rebellion was to specify two sums, a dowry and also a “bride price.” She finds evidence of a dowry only. It was written into the ketubah as an obligation that the husband accepted upon himself to repay upon dissolution of the marriage.
The Tosefta draws a closer connection between dowry and inheritance.
If a man dies and leaves sons and daughters, and the estate is large, the sons inherit and the daughters are maintained and given a dowry from it [ניזונות ומתפרנסות]. How do the sons inherit? … (Tosefta Ketubot 6:1)
How are the daughters maintained and given a dowry? One does not say, if their father were alive, he would have given them such and such; rather we see how much girls like them [i.e., of similar socioeconomic status], receive as a dowry and this is what we give them. (T 6:2)
Rebbe says: Each one takes one tenth of the assets. R. Judah says: If he married off his first daughter, the second should receive [after his death], what the first received.… (T 6:3)
These baraitas determine that dowry and also maintenance, the ongoing day-to-day support,16Although a father is not required to maintain his daughters in his lifetime, once he dies, the daughters’ maintenance is to be drawn from his estate, lessening thereby the amount inherited by the sons. An easy model to imagine is that the sons inherit the real property, and the daughters, until they either mature or marry, are maintained from the income of the inherited assets. See M Ketubot 4:6, 11, and associated materials in the Bavli and Yerushalmi. are a daughter’s due from her father’s estate after his death. T 6:1 speaks of these moneys in parallel fashion to the son’s inheritance, implying thereby that it is her inheritance, even though it may not be called such. T 6:2 adds that the size of this dowry should be determined by the father’s economic standing and the standard practice of other men in similar situations. T 6:3 presents the most liberal view of all, that of Rebbe, who holds that each daughter is to receive one tenth of her father’s assets upon marriage. All agree, in other words, upon a way to give daughters a share of their father’s estate in the event that they have brothers who inherit: Call it “parnasah” and make it large enough so that what a daughter gets is comparable to what a son gets. Those who say that it is not a fixed amount, but either commensurate with his economic standing or one tenth of his assets, clearly make the analogy between a daughter’s dowry and a son’s inheritance.
Both Talmuds seized upon this proportionate way of assessing a dowry after a father’s death.
–– … But did not Rava say … the halakhah is according to Rebbe [that each daughter takes one tenth of the assets] …
… [We learned in a baraita:] Rebbe said: A daughter who is maintained by her brothers [after their father’s death] takes one tenth of the assets [as a dowry]. They said to Rebbe: According to you, someone who has ten daughters and a son, the son will receive nothing once the daughters [all take their dowry]! He said to them: This is what I mean, the first takes one tenth of the assets, the second [takes one tenth] of what the first one left, the third [takes one tenth] of what the second one left, and then they all divide it up evenly [and in this manner the son will have an inheritance of about one third of the estate].…
We learned in a baraita: If daughters either mature before they marry or marry before they mature, they lose their maintenance but not their dowry—the opinion of Rebbe. R. Simon b. Elazar says, they even lose their dowry [if they mature before they marry]. What can they do? They can “hire” husbands and claim their dowry [prior to maturing so that they do not lose it].
––Said R. Nahman: Huna told me that the halakhah is according to Rebbe.… (BT Ketubot 68a)
The first of these two baraitas notes, once again, the conflict between sons and daughters. It is like the first paragraph of the Tosefta in that it stipulates that daughters collect their dowry from the estate, but specifies, as does T 6:3, that each is entitled to one tenth. The question almost asks itself: What about the sons? Is not their share significantly diminished if so much is given to the daughters? The answer is that there will always be something left for the sons, even if each daughter claims one tenth; moreover, a son’s share will be larger than a daughter’s because a daughter receives less than a proportionate share of the assets. If we take a case in which there are three daughters and seven sons (like Job’s second family), and an estate of 1,000, the first daughter gets 100, the second daughter one tenth of what is left, 90, and the third daughter one tenth of what is then left [.10(810)], 81. This leaves 729 to be divided among seven sons—so each will get a share of about 104, which is larger than the share of any one of the daughters, with the gap between a son’s and a daughter’s share growing as each successive girl takes her due. If there is one daughter followed by nine sons, there is full equality—each child will get one tenth. If there are nine daughters and one son, the last of the girls will get a share of 43, whereas the son will get what remains, 389. If the daughters then divide up their shares evenly, as also recommended by Rebbe, each will get about 68.
As the last part of the quoted passage indicates, according to Rebbe the dowry is protected: The daughters cannot lose it when they mature, even though they lose their right to maintenance at that time. Since R. Simon b. Elazar holds otherwise, he recommends that if a girl whose father died did not marry before reaching maturity, she should “hire” herself a husband in order to claim her dowry. In other words, she should circumvent disenfranchisement of her share of the estate by staging a betrothal.
It is hard to understand why the definition of a dowry as one tenth of a father’s assets appears in Rebbe’s name in the Tosefta, the Bavli, and the Yerushalmi (PT Ketubot 6:6; 30d), but not in the Mishnah. The Mishnah requires that a father give a daughter no less than 50 or 100 zuz and the same to her sister who marries after their father’s death. Although it does say that a daughter can later demand what she deserves, she is not initially entitled to the one tenth fixed by the other texts. The Mishnah also presents R. Judah’s view that the second daughter should get what the first one got and the Sages’ view that after the father’s death, the dowry is determined according to his wealth. But these are still not so generous a grant, in most cases, as the rule of one tenth.
We also see, from the opening line of Ketubot 68a, that the Amoraim fixed the law according to Rebbe’s rule that a dowry after the father’s death is one tenth of his estate. For a family in which there were many children, the share that each daughter received would vary with the size of the estate but would in most cases be smaller than that of a son.17One can construct cases in which there are about twice as many sons as daughters and thus a daughter’s share is greater than a son’s. The important point is that it was no longer accurate to say, once a dowry after a father’s death was pegged at one tenth—a relative share and not a set amount—that sons inherited and daughters did not.18The Yerushalmi also fixed the law according to Rebbe’s rule of one tenth:
––“R. Zeira asked R. Nahman b. Jacob and R. Ammi bar Pappi: Which tanna holds the principle of [assigning] one tenth of the assets [for the dowry]?
––“Said to him R. Zeira in the name of R. Jeremiah: Assigning one tenth of the assets for the dowry is the opinion of Rebbe.
“[As we learned in a baraita:] They asked Rebbe: If there were ten daughters, and the first took one tenth, and the second took one tenth, … then there would be nothing left for the son. He answered them: The first takes one tenth and leaves, and the second takes one tenth of what is left. … It turns out that the ten girls take a little less than two thirds and the son takes a little more than one third …” (PT Ketubot 6:6; 30d).
What interests the Amoraim here is the rule of one tenth. Some are apparently not familiar with the passage in the Tosefta that presents Rebbe’s view in contradistinction to R. Judah’s. But they seem to know of the principle and are informed that Rebbe issued it and defended it. Like the Bavli, the Yerushalmi adopts this principle as its standard. See the rest of the discussion in the Yerushalmi in which the rabbis decide to rule like R. Hanina, who gives a second daughter, after her father’s death, one tenth of his assets.
I do not think it possible to overestimate the significance of the rule of giving a girl a dowry of one tenth of her father’s estate. This is probably as outright a rejection of the Torah’s rule of a daughter’s exclusion from inheritance as one can find.19Cotton (“Women’s Documents from the Judaean Desert”) makes precisely this point in reference to the deeds of gift found in the archives of Babatha and Salome Komais. She theorizes that these deeds were written by fathers upon the marriage of daughters, with the specific purpose of circumventing the Torah’s disenfranchisement of women. In other words, there is evidence, from about 130 C.E., that women were given large dowries, presumably for the fathers to give them in this way a share of the wealth. We also have evidence from these archives of husbands making large gifts to wives. The question is, Why did the rabbis adopt this liberal principle, clearly at the expense of sons? There are two answers: because they loved their daughters and also because they could see ahead to the day when their daughters’ sons would inherit from their mother what she “inherited” from them, the grandfathers. We can find evidence for this outlook on the part of fathers of the bride in the enactment of the ketubat bnin dikhrin (the ketubah of the male offspring). M Ketubot 4:10 stipulates that should a woman predecease her husband and he inherit her assets, then, upon his death, the dowry that she brought into the marriage will be inherited only by the sons that she had with him and not by his sons from another wife. The Gemara comments:
––Said R. Yohanan in the name of R. Simon b. Yohai: Why did they institute the ketubat bnin dikhrin? So that a father would seize the opportunity to “write” for [i.e., give to] his daughters [a share of his wealth] just as he “writes” for his sons [כבנו כדי שיקפוץ אדם ויכתוב לבתו].
==Can it be that the Merciful one says [in the Torah] that sons inherit and daughters do not and the rabbis come and enact that daughters do inherit?
==This too is from Scripture, for it says: “Take wives and produce sons and daughters and take wives for your sons and give your daughters to men in marriage” (Jeremiah 29:6)—the verse makes good sense in reference to sons, for it is within a father’s power to find them wives. But his daughters, is it within his power to marry them off? This verse, therefore, comes to teach that he should clothe her and bedeck her and give her something [of substance, i.e., a dowry] so that men will seize her and marry her [דקפצי עלה ואתו נסבי לה].
==How much [does he give her as a dowry in his lifetime]?
––Said Abaye and Rava: Up to a tenth of his estate. (BT Ketubot 52b)
This passage explicitly equates dowry and inheritance. When it says that a man should write, that is, give,20See notes 11, 14, 15. The Munich ms. reads “to give.” his daughter in the same generous way that he gives his son, the reference is to the inheritance he leaves his son. The dowry he gives to his daughter in his lifetime becomes the way in which he can pass on to her a share of his wealth. Interestingly, this passage already assumes that a man wishes to give such a share to his daughter and is designed to teach something else, namely, that if a father fears that what he gives her will, in the course of time, pass on to some other man’s grandsons, then the rabbis guarantee, by means of this ketubah stipulation, that his assets will go only to his own grandsons.
Since the Gemara understands R. Yohanan’s statement to be saying that dowry is a surrogate inheritance, it has no choice but to go on and ask: How can it be that the rabbis rescind or transform the Torah’s explicit provision that daughters do not inherit when there are sons? The weak scriptural support that they bring to support a daughter’s “inheritance” reveals that this rule is not even hinted at in the Torah. In fact, the opposite is true: The rabbis clearly intend to circumvent the Torah’s disenfranchisement of women in inheritance law.21See note 19. The Gemara’s barely relevant Jeremiah prooftext indicates that this is an after-the-fact attempt to support a bold legislative initiative. The message of this passage, stated very bluntly, is that rabbis may come along and introduce legislation that frustrates Torah law, provided their goal is worthy. The argument in BT Gittin 33a (see Chapter 5) that the rabbis were not legislating against the Torah when they restricted a man’s freedom to cancel a get, was more convincing. Here, it is clear that they are legislating against the simple Torah rule that daughters do not inherit for the purpose of keeping the Torah in line with social justice.22There is extensive rabbinic discussion of the possibility of ruling against the Torah, in particular in monetary matters. See, for example, M BM 7:11 and associated Gemara. The Gemara, however, cannot make this point openly, only obliquely.
We cannot fail to notice that this dowry rule of one tenth significantly improves women’s rights and even their status. Although the practice of fathers giving dowries to daughters was common in the ancient world, dowries given after a father’s death in this kind of proportion probably were not, as evidenced by the rabbinic debate on this point. It would seem that Rebbe introduced the proportional one-tenth rule to make sure that a wealthy girl did not get too little and a poor girl too much of her father’s estate. The one catch in this computing system is that a woman whose father died and who does not marry will never be able to claim her “inheritance,” unless she follows R. Simon b. Elazar’s advice (Ketubot 68a) and “hires” for herself a husband.
In addition to the dowry, there is yet another manner in which a man can choose to give part of his estate to his daughter. Since he cannot name her as an heir, he can make her a gift in contemplation of death and in this way transfer part of his estate to her. Reuven Yaron, who has written extensively on this subject, comments that such a gift is one that “is finally irrevocable only on the donor’s death.” Since it takes effect upon death, and not before, it was in substance identical to bequeathing an inheritance but in form radically different. Such a gift roughly corresponds to the Roman donatio mortis causa.23Yaron, Gifts in Contemplation of Death, 1.
1. If a man says, “So-and-so my firstborn will not receive a double share [of my estate] or “so-and-so my son will not inherit along with his brothers,” he has said nothing because he has stipulated against the Torah.
2. If he divides up his estate among his sons by the word of his mouth and assigned more to one son and less to another, or gave the firstborn an equal share with his brothers, his words stand [because these are gifts in contemplation of death and not an inheritance].
3. But if he said, “as an inheritance,” he has said nothing [i.e., he cannot deny his firstborn a double share nor give one son more than another].
4. If he wrote either at the beginning, or in the middle, or at the end, “as a gift,” his words stand.
5. If a man says, “so-and-so will inherit me” in a case in which he has a daughter, or “my daughter will inherit me” in a case in which he has a son, he has said nothing because he has stipulated against the Torah. R. Yohanan b. Baroka says: If he said so about someone who is fit to inherit from him, his words stand; but about someone not fit to inherit from him his words do not stand.24There is much discussion in the Bavli about whether or not the halakhah is in accord with R. Yohanan b. Baroka. His view, that as long as the person to whom one transfers the inheritance is a Torah heir, the redistribution is allowed, has enormous implications for daughters. However, a tannaitic source in the Bavli (130a) says, in the name of R. Ishmael the son of R. Yohanan b. Baroka, that his father did not have in mind to bequeath to a daughter and disinherit sons. The extensive discussion of whether the law follows R. Ishmael leads me to believe that it was precisely this issue—favoring a daughter over sons—that divided the rabbis over the generations. The Yerushalmi also discusses this matter extensively (PT BB 8:5; 16b). … (M Baba Batra 8:5)
The second section of this mishnah provides a strategy for circumventing the Torah’s rules of intestate succession that favor a firstborn over other sons and sons over daughters. If a father makes a gift in contemplation of death to anyone he wishes, provided he does say it is a gift and does not say it is an inheritance, his words stand.25The oral statement of a dying man is considered to have the force of a written will. The third section of this mishnah addresses the issue of a man’s freedom to distribute his assets as he sees fit. Note that this mishnah shows him how to circumvent the Torah: Since he cannot openly and explicitly stipulate against the Torah, he can achieve exactly the same end, that is, distribute his assets as he wishes, by adopting the strategies outlined or maybe even recommended here by the rabbis. It seems to me that the author of this paragraph, as made evident by his examples, opposes the bias in favor of a firstborn son and against daughters.
The Yerushalmi also seems to oppose special rights of the firstborn.
––R. La gave all the brothers an equal share [השווה את הבכורה לאחין], even the firstborn.26Either R. La divided up his own estate in this manner or he so divided up someone else’s estate.
––Said R. Haggai: Is there not a verse that says that he may not favor [the son of the beloved wife over the firstborn son of the despised wife but must give him a double portion (Deuteronomy 21:16)]?
––Said R. Lezer: In the name of the worship service! He has the power to [deny him his double portion], but he is not permitted to do so [from the outset, העבודה שיכול אלא שאינו רשאי]; [instead,] he can give it as a gift [i.e., he can distribute the estate equally to all sons as gifts, not as inheritance]. (PT Baba Batra 8:4; 16b)
This passage reinforces the legal strategy for redistribution. It records a rabbinic decision in which the firstborn is treated no differently from the other brothers, all of whom received the same share of their father’s estate. When asked to explain how R. La could arrive at such a decision, given that the Torah stipulates otherwise, R. Lezer responds that the testator distributed his assets as gifts, not as inheritance.
Again, it seems extraordinarily clear that in this case one has to circumvent Torah law in order to do what one thinks is right, that is, give an equal share to all of one’s sons. A double share for the firstborn was no longer justified in many rabbis’ eyes. Calling the inheritance “gifts” rather than “inheritance” becomes the simple solution.
This passage in the Yerushalmi is important because it tells us that an actual case was adjudicated in this manner. Moreover, the statement is clearly made that there is nothing wrong with wanting to do things differently from what the Torah recommends, provided one adopts the appropriate legal strategy. The Torah’s inheritance laws have become the default position, available for a man who does not wish to deal with his estate in any other way. But if he is not satisfied with that manner of distribution, the door is open to many other possibilities.27See BT BB 126b ff. The anecdotes suggest that the firstborn’s special privileges were still granted in the amoraic period.
The issue of a daughter’s disenfranchisement, in addition to generating halakhic controversy, stirred political debate as well. According to M Baba Batra 8:2, an heir’s direct descendants stand in for him if he dies before inheriting from his own progenitors. For instance, if a man dies leaving a daughter and a son’s daughter, the granddaughter inherits all, because she stands in for her father, the decedent’s son. The decedent’s daughter inherits nothing. This particular rule, which seems to defy common sense in that a person who is two generations removed takes precedence over one who is one generation removed, with both being of the same gender, subjected the rabbis to much criticism.
We learned in a baraita: … for the Sadducees said, let the decedent’s own daughter inherit together with his son’s daughter! Said R. Yohanan b. Zaccai [in defense of the mishnah’s rule] … (BT Baba Batra 115b)
The Sadducees say that the son’s daughter and the [decedent’s own] daughter are both equal [in their right to inherit from the decedent]. For they say: “If the daughter of my son, who derives standing from my son, inherits from me, then my own daughter, who derives standing from me, how much the more so should she inherit from me!” (PT Baba Batra 8:1; 16a; =T Yadaim 2:20)
This passage, in which the Sadducees mock the illogical rulings of the rabbis, indicates that the bias against women in inheritance law was not only an academic matter but also part of the public political discourse. R. Yohanan b. Zaccai may have been able to provide a technical halakhic answer to defend the rabbis’ position, but the Sadducees’ claim takes the moral high ground: How can you disenfranchise daughters in favor of granddaughters?
The discussion of daughters’ taking a share along with sons triggered a similar query about wives.
––R. Abba sent [a letter] to R. Joseph b. Hama: If a man says, let my wife take a share like that of my sons, she takes a share like one of the sons.
––Said Rava: Provided it is [a share] of the assets he owns now [at the time that he made the statement] and that it includes any sons born to him later. (BT Baba Batra 128b)
––Said R. Judah said Samuel: If a man assigns all of his assets to his wife, he has only appointed her a guardian [and not an heir, ].…אלא אפוטרופא לא עשאה (131b)
Since the first statement appears in conjunction with M Baba Batra 8:5, about the distribution of assets as one sees fit and not according to the Torah’s scheme, R. Abba is proposing a strategy for enabling wives to inherit from husbands. Rava qualifies it somewhat. Other statements on this topic appear a few pages later, again implying that wives’ disenfranchisement was considered problematic by the rabbis and that they took steps to resolve it. In a sense, the inheritance of the wife has been guaranteed by the promise made in the ketubah. But in the Baba Batra cases, a husband is interested in enfranchising his wife in a proportional way, at the expense of his other heirs. Although there is much more discussion of daughters’ inheritance than wives’, it is not unreasonable to conclude that by the end of the amoraic period, men—and also women—who followed rabbinic law had the freedom to bequeath their assets to whom they wished, not necessarily favoring a firstborn or leaving out daughters and wives.
The Mishnah (Baba Batra 8:4) introduces a topic not found in the Torah—disposition of a mother’s estate. The question is: Do the sons take all, leaving their sisters nothing, as the Torah legislates for a father’s estate, or given the Torah’s silence, are the rabbis free to decide on their own how to adjudicate this matter? By reading a series of rather complicated texts in chronological order, we will find that the topic remained controversial and unresolved for several centuries.
The same goes for sons and for daughters regarding inheritance [אחד הבן ואחד הבת בנחלה], except that a [firstborn] son takes a double share of his father’s estate but not of his mother’s, and a daughter is maintained from her father’s estate, but not from her mother’s. (M Baba Batra 8:4)
This mishnah is hard to understand. First, what is the “same” for sons and daughters with respect to inheritance? The standard interpretation28Albeck, Baba Batra, 145. is that when there are no sons, daughters divide up the father’s estate in the same way that sons do. The words “the same” are distorted in this interpretation, however, for in most instances daughters, who get nothing, are not the same as sons. Second, once an equality is stated regarding sons and daughters, we would expect the Mishnah’s “except that” to introduce some exception to that rule of equality, that is, some way in which sons and daughters differ from each other. Instead, the Mishnah states two differences in law between the father’s and the mother’s estate, one that holds true for sons and one that holds true for daughters.29Ibid. addresses this problem by adding the following points: A firstborn daughter does not take a double share, neither of her father’s assets nor of her mother’s; a son is not maintained either from his father’s estate or from his mother’s. In this way, the Mishnah makes sense in that it compares sons and daughters in reference to nahalah, interpreted as the sum total of the father’s and mother’s estates. The problem with this interpretation is that it does not arise from the text itself but is superimposed onto the text. See BT BB 122b.
To resolve these difficulties, we turn to the parallel passage in the Tosefta.
Just as a son takes precedence over a daughter in the [distribution of the] father’s assets, so too he takes precedence over a daughter in the [distribution of the] mother’s assets; R. Elazar b’R. Yossi says in the name of R. Zechariah b. Hakazzav, and a similar [statement was made by] R. Simon b. Judah of Kfar Ibus in the name of R. Simon: The same goes for a son and the same goes for a daughter, they are equal in their [inheritance of] the mother’s assets. (Tosefta Baba Batra 7:10)
What we see here is quite striking: The first (anonymous) Tanna holds that sons always take precedence over daughters in inheritance, whether it be in the father’s estate as dictated by the Torah or in the mother’s estate, whose laws can be learned by analogy from the father’s estate. But a number of Tannaim, disagreeing with the anonymous Tanna, claim absolute equality for sons and daughters when it comes to disposing of a mother’s estate. This may be the only issue of privilege in rabbinic literature regarding which full equality of women and men is recommended.
Unlike the Mishnah’s phrasing “the same goes for sons and the same goes for daughters regarding inheritance,” which, as we have noted, is an opaque formulation, here the rule of sons’ taking precedence over daughters in the disposition of both a father’s and mother’s estate is spelled out clearly as an advantage that sons have over daughters. An even greater contrast between the Mishnah and the Tosefta is the use in the Tosefta, by a named Tanna, of the phrase “the same goes for sons … the same goes for daughters …” with respect to a rule that treats sons and daughters exactly the same: the distribution of their mother’s estate. Thus, the Tosefta’s use of this phrase is perfectly clear, whereas the Mishnah’s is ambiguous. So, if we assume that the Tosefta’s paragraph is older than the corresponding mishnah, then, when the redactor of the Mishnah selected this passage for inclusion in his collection, he reworked it in order to impose his own, less egalitarian point of view on it. However, he sacrificed clarity in order to make his point. To show that sons should be awarded all of their mother’s estate, without losing even part of it to maintenance for their sisters or to the firstborn’s extra share, not only did he omit all mention of R. Zechariah b. Hakazzav and the others, but he co-opted their linguistic formulation for his own rule, even though it does not frame the rule very well. That is, not only does the redactor of the Mishnah fix the halakhah contrary to the Tannaim of the Tosefta and omit all reference to their dissent, he even takes over their phraseology for his own purposes.30See Y. N. Epstein (Mavo Lenusach Hamishnah, 2nd ed. [Jerusalem: Magnes Press, 1964], 660) for a similar analysis of this mishnah. Epstein considers the connecting phrase “except that” [——אלא ש] to be an arbitrary way of connecting the two disparate parts of the mishnah, the second of which also appears in M Bekhorot 8:9. See also BT BB 122b.
We thus see that the issue of disposing of a mother’s estate was debated by many generations of Tannaim, beginning with R. Zechariah b. Hakazzav, who lived in the time of the Temple and favored equality, and ending with the redactor of the Mishnah, in about 200 C.E., who ruled against equality. Remarkably, the controversy continued well into the amoraic period. After citing a version of the Tosefta’s baraita, one that includes the view of R. Zechariah b. Hakazzav, the Gemara brings three anecdotes:
––R. Nitai was thinking of ruling in a case [of brothers and sisters arguing over the disposition of their mother’s estate] like R. Zechariah b. Hakazzav. Said to him Samuel: Like whom? Like Zechariah? Zechariah is nothing [אפס זכריה]!
––R. Tavla issued a ruling in accordance with R. Zechariah b. Hakazzav. Said to him R. Nahman: What is this? He said: R. Hinena b. Shelemya has said in the name of Rav, the halakhah is in accordance with R. Zechariah b. Hakazzav. He said to him: Retract, or I will take R. Hinena b. Shelemya out of your ear!
––R. Huna b. Hiyya was thinking of ruling in a case [that came before him] in accordance with R. Zechariah b. Hakazzav. Said to him R. Nahman: What is this? … (BT Baba Batra 111a)
We learn from these three passages that in the amoraic period the issue of disposing of a mother’s estate was far from settled. Although R. Zechariah b. Hakazzav is not mentioned in the Mishnah, three early amoraim wish to rule like him. His view is made known to them, it seems, from the baraita. It is quite unusual for Amoraim to rule according to a Tanna whose opinion contradicts the one view presented in the Mishnah. In each of the three cases, in which we may assume sisters were suing brothers for an equal share of their mother’s estate, a little known Amora wishes to find in their favor and is squelched by a prominent colleague. What motivated these Amoraim to want to rule in favor of a daughter’s right to inherit? It seems to me that it can be nothing other than a sense of fairness. In a matter about which the Torah is silent, these three men decide that a mother’s estate should be divided equally between her sons and daughters.
The Yerushalmi parallel (Baba Batra 8:1; 16a) highlights this controversy. It quotes the baraita from the Tosefta, with the dissenting view of R. Zechariah b. Hakazzav, and then says that R. Joshua b. Levi, a first-generation prominent Amora, rules the same as he. Here, too, an Amora rules the same as a Tanna whose view is not included in the Mishnah. The Yerushalmi then reports that a case came before R. Yannai of Capodoccia, a fourth-generation Amora, involving a woman who was apparently suing her brother for half of their mother’s estate. He and his three colleagues, R. Huna, R. Judah b. R. Simon b. Pazi, and R. Aha, together decided the case according to the Mishnah and thus overturned the ruling of R. Joshua b. Levi that followed R. Zechariah b. Hakazzav and favored women. They note that their colleagues outside of the land of Israel mistakenly rely on R. Joshua b. Levi’s leniency. The Yerushalmi then cites three Amoraim, each of whom names an early master who rules against R. Zechariah.31R. Joshua b. Levi (!), R. Yohanan, R. Hoshaia. Here, as in the Bavli, early sympathy for R. Zechariah is replaced by later strenuous objection to his opinion. This ongoing controversy, generation after generation, makes it clear that the injustice continued to bother the rabbis. Equity in this matter seems to have been an attractive idea to them.
Both Talmuds include yet more material on this subject. Following these brief incidents, we find a lengthy anecdote from the early amoraic period in which two rabbis debate the related issues of a woman’s disenfranchisement and a firstborn’s double enfranchisement.32BT BB 110a; PT BB 8:1; 16a.
The two main protagonists are the aged R. Yannai, a student of R. Judah the Prince, and R. Judah Nesia, a grandson of R. Judah the Prince and a Prince himself.33The story begins with a brief interchange that informs the reader of preexisting hostility between the two rabbis. R. Yannai is told by his assistant that the man approaching them is dressed in fancy clothes. When R. Judah draws near, R. Yannai fingers the cloth of R. Judah’s cloak and makes a disparaging comment. Before any conversation takes place, R. Yannai has already indicated his disdain for R. Judah Nesia’s wealth and position. The core of the vignette is an exchange between the two masters. R. Judah Nesia asks R. Yannai for a scriptural source for the law that a son takes precedence over a daughter in a mother’s estate. He responds that Numbers 36:8, when talking about women’s inheritance, mentions “tribes” in the plural. This grammatical form implies that the rules of inheritance for a father’s tribe are comparable to the rules of inheritance for a mother’s—just as a son takes precedence over a daughter in the disposition of a father’s estate, so does he take precedence in the disposition of a mother’s. R. Judah Nesia challenges the analogy: “If so, then just as a firstborn son takes a double share of his father’s estate, he should likewise take a double share of his mother’s estate,” a conclusion contrary to the one stated in M Baba Batra 8:4. R. Judah Nesia is thus suggesting that we either give a son both advantages—precedence over a daughter in the disposition of a mother’s estate and also a firstborn’s double share of a mother’s estate—or else neither. Other positions, like the one R. Yannai espouses, are not logically sound. Upon hearing this, R. Yannai mutters to his assistant, “Help me get up; this man does not wish to learn.”
This story is very perplexing. That R. Judah Nesia finds fault with R. Yannai’s derivation suggests that R. Judah is not pleased with the rule that favors sons over daughters, even though at the outset he appears to accept it when he asks for its scriptural basis. I say this because R. Yannai’s derivation is no different from other rabbinic derivations of law from Scripture. Thus, R. Judah’s challenge is not mere finding fault with the application of a hermeneutical device but more likely an objection to the Mishnah’s ruling. Moreover, R. Judah’s retort can be construed as a criticism of the rule of a firstborn’s double share, a law that offends moral sensibilities in the rabbinic period much the same way as the disenfranchisement of daughters. The end of the story is its most ironic part: R. Yannai accuses R. Judah Nesia of being closed-minded when, in fact, it is he himself who is unable to entertain the possibility of equal inheritance for women and men. In neither the Bavli nor the Yerushalmi version does R. Yannai respond directly to the critique. As soon as he hears R. Judah’s suggestion that women should inherit from their mothers and that firstborns should not receive a double share, R. Yannai abruptly ends the conversation and prepares to leave.34Note that it is someone who is reputedly wealthy and well connected who is in favor of expanding women’s inheritance rights and also limiting those of the firstborn. Both of these changes move in the direction of fairer distribution of assets. It is also interesting that R. Judah Nesia is pictured by R. Yannai at the very beginning of the anecdote as arrogant, and yet it is R. Yannai who dismisses him summarily without responding to the point that he raised. See also BT Shabbat 116a-b for a further critique of women’s disenfranchisement.
It is noteworthy that in the Yerushalmi version, after R. Judah Nesia listens to R. Yannai’s analogy, he suggests that this verse, in fact, teaches the reverse: Just as a daughter has an equal share with a son in her mother’s estate, so too should she have an equal share with a son in her father’s estate! That is, R. Judah Nesia expresses his dissatisfaction with sons’ taking precedence over daughters not only in a mother’s estate but even in a father’s estate, a position that is blatantly at odds not only with the Mishnah but also with Scripture!
Conclusions
We have seen, in this survey, the considerable turbulence on the subject of women’s inheritance in both the tannaitic and the amoraic periods. The rabbis exhibit a growing opposition to disinheriting women, despite the Torah’s prescriptions. The Tannaim say, almost explicitly, that a person can behave totally differently from what the Torah prescribes, distribute his wealth as he sees fit, provided that he does not violate the letter of the law. As long as the assets that a father gives to a daughter are given as a dowry or as a gift in contemplation of death, it is legitimate for him to assign her a substantial share of his wealth. This area, more than marriage, divorce, or ritual, is one in which the rabbis felt women deserve to be given more rights than the Torah allows. It differs from the others in that men’s dignity is not at stake, nor is their relationship with their wives. What is at stake is their relationship with their daughters, with an eye toward prospective grandsons. Inheriting a share of a father’s estate is a boon to women because many assets may have accumulated after they had married and received a dowry.
Chapter 8 of Baba Batra, which deals with inheritance, seems subversive in its principal message: It dwells on rabbinic opposition to many of the Torah’s rules of intestate succession, not just the disenfranchisement of women. Though the rabbis raise women’s issues in many different places in the chapter, they also challenge a firstborn’s rights to a double share and the lack of the testator’s freedom to disinherit Torah mandated heirs.
As we have seen, the rabbis make many significant changes in the rules of distribution of assets. But we also find resistance to change for the benefit of women, most notably in the Mishnah’s rejection and omission of R. Zechariah b. Hakazzav’s suggestion of equality in the disposition of a mother’s estate. It seems that men will go just so far. Perhaps the notion of equality, even in one limited area, was too much for them to consider. Nevertheless, the amoraic debate on this topic, in both Palestine and Babylonia, with so many rabbis from so many generations taking part, suggests that at least a minority valued and promoted equality for women.