May One Structure a Contract That Goes Against the Halachos of Yerusha?

Rav Yitzchak Grossman

Question: Would it be permitted to enter into a contract, such as a prenuptial agreement, that states that upon one’s death, his assets will be distributed according to secular law, rather than according to halacha?

Answer: This is an unclear and somewhat controversial point.

We previously mentioned the teshuva of the Rashba, which says that we don’t follow secular law against the order of yerusha. In the same teshuva, he also talks about when an accepted minhag is against halacha and says that even though the common custom is normally considered to be like an explicit stipulation, and one may stipulate any monetary arrangement he wants, the exception to this rule is when one makes a stipulation specifically with the goal of imitating the non-Jews. In such an instance, it is forbidden to follow the minhag. He seems to be saying that one cannot make a contractual stipulation that is meant to emulate secular law and give it precedence over the halachic order of yerusha. 

Rav Tzvi Gardner and others say that this applies to a prenuptial agreement as well. Based on the Rashba, he says that one cannot make a provision that goes against halacha. Rav Zalman Nechemiah Goldberg disagrees and says that a prenuptial agreement can be structured like a kesuva, which would be permitted. Most Poskim, however, are of the opinion that a contract cannot be structured to follow non-Jewish law. 

The Bais Din of America, led by Rav Mordechai Willig, created an interesting compromise. They said that while structuring a contract to simply be in accordance with secular law might be problematic, one may write a contract that says that the current secular law on the day the contract is signed will be followed, but the agreement will not change as secular law evolves in the future.