Can a Community Enact Rules That Diverge from Seder Hayerusha?

Rav Yitzchak Grossman

Question: Is a Jewish community permitted to issue its own rules for inheritance which are not necessarily the same as the rules delineated by halacha?

Answer: There is a strong basis for communities to enact rules that alter the seder yerusha.

The Gemara relates that after the story of the Pilegesh B’Givah such a takanah was made. Normally, if a man who had several living sons dies and he was also predeceased by one son who left behind a daughter, the halacha is that the daughter receives her father’s share in the inheritance. At that particular time, however, due to factors related to this situation, it was decreed that the daughter would not receive her share.

During the medieval period, we also find various takanos to alter the order of yerusha. Rabenu Tam enacted a decree that if a woman dies within the first year of marriage, her dowry reverts to her father, even though according to halacha it would go to her husband. The reason he made this takanah was to mitigate the agmas nefesh the father would have if, after losing his daughter, he also would lose his money. Other similar takanos were enacted around the same period of time and throughout later generations to deal with particular circumstances. Thus, it is clear that it is legitimate to change the seder of yerusha for specific reasons.

One exception the Gemara says is that a daughter may not be granted a share of inheritance together with her niece, the daughter of a deceased son. Tosafos says that this cannot be done even as a takanah because this was a minhag of the tzedukim to equate the daughters with granddaughters, and we don’t want to give support to them. Thus, we see that this specific takanah cannot be made, but others can be.

As time went on, some Poskim became more reluctant to new decrees. When the Machazeh Avrohom was told that the Nesivos had made such a takanah, he said that he could not believe this because we do not have the authority in our times to make new decrees, even though this was done in the past.

In the 20th century, there was a great debate over this in Eretz Yisroel. Rav Herzog wanted to alter some dinei yerusha to allow daughters to have a share so that the government of the state of Israel would agree to accept halacha. However, most Gedolim of his time did not agree with this.