Nachalot - Chapter 1

Sefer HaMitzvot (Positive Commandment 248) and Sefer HaChinuch (Mitzvah 400) consider inheritance to be one of the 613 mitzvot of the Torah.

All of the laws in Hilchot Nachalot apply when a person dies without distributing his property through a will. The various halachic means through which to divide one’s property through a will are discussed in Hilchot Zechiyah UMatanah, Chapters 8-12.

Numbers 27:8 states: “When a man dies and he does not have a son, you should transfer his inheritance to his daughter.” Implied is that if he does have a son, the daughter does not receive anything.

I.e., even if the father has died, the child’s mother does not inherit the estate. Instead, it is given to the father’s sons.

I.e., both the concepts that the father inherits his son’s estate and that the mother does not are not stated in the Torah, but instead were conveyed by the Oral Tradition [Rambam’s Commentary on the Mishnah (Bava Batra 8:1)].

I.e., the daughter of the deceased’s son takes precedence over the deceased’s daughter. For the deceased’s son “inherits in the grave”- i.e., even though he has died, his right to the inheritance takes precedence over his sister’s. From this point on, the inheritance is considered to be his property and is given to his descendants, whether male or female.

I.e., his paternal brothers. His maternal brothers have no share in his inheritance, as stated in Halachah 6.

The Rambam’s words are taken from Bava Batra 115b. The Talmud asks: Why do we not say until Jacob, for he is Reuven’s father? And replies: “It is an accepted tradition that no tribe will ever be wiped out,” and thus although the line of inheritance may extend back to Jacob’s sons, it will never have to extend back to Jacob himself.

The son’s daughter takes her father’s place. Thus, it is as if both the son and the daughter are represented. In that instance, the daughter does not receive anything, as stated in Halachah 2.

Note Bava Batra 116b, which illustrates this concept using the example of Tzelofchad’s daughters.

When a woman’s husband is no longer alive, however, her children inherit her estate [Bava Batra Ill a; Shulchan Aruch (Choshen Mishpat 276:4)].

Who have different fathers.

A person born out of an adulterous or incestuous relationship.

Instead, the maid-servant’s son is considered to be a servant and the gentile woman’s son to be a gentile. Even if the maid-servant’s son is freed or the gentile woman’s son converts, he is not considered to have any connection to his father by blood.

She does receive the money she brought to the marriage, the money due by virtue of her ketubah (ante-nuptial contract), and any money her husband willingly gave to her. Moreover, she is allowed to continue living in her husband’s home until she remarries. She does not, however, receive any portion of the estate divided according to the laws of inheritance.
The Maggid Mishneh clarifies that the Rambam’s words should not be misinterpreted. A woman does not lose any right she has to her husband’s estate because she marries him. For example, if she is his brother’s daughter and she is his closest surviving relative, she inherits the estate.

Ketubot 83b records a difference of opinion among the Sages whether a husband’s right to inherit his wife’s estate is of Scriptural origin or merely a Rabbinic decree. The Rambam subscribes to the latter view. (See Chapter 6, Halachah 8.) The Ra’avad takes issue with the Rambam and maintains that his right is of Scriptural origin.
See the Kessef Mishneh, who states that sometimes, when the Rambam uses the expression midivrei sofrim, his intent is that the law has the strength of a Scriptural commandment and was merely not stated explicitly in a verse, but derived by the Rabbis through the principles of exegesis. In this instance, however, the Rambam’s subsequent rulings [Chapter 6, Halachah 8; see also his Commentary on the Mishnah (Bechorot 9:11)] indicate that this is not the case.

I.e., his rights supersede even those of her children.

The rite performed when a man dies without leaving children.

I.e., if a marriage was forbidden by a negative Scriptural commandment, a positive Scriptural commandment, or a Rabbinic commandment (see Hilchot Ishut, Chapter 1), the husband has the right to inherit his wife's estate. If, however, the marriage involves a union punishable by death (either execution by the court or by the hand of Heaven), it is as if there is no marriage (ibid.), and the man has no right to the woman’s estate.

Provided she was given in marriage by her father. The laws that apply with regard to the inheritance of a female minor who was not given in marriage by her father are described in Halachah 10.

A marriage of a deaf-mute is effective only according to Rabbinic decree (Hilchot Ishut 4:9). Nevertheless, as the Rambam states (ibid. 22:4), the woman is capable of understanding, and she married the deaf-mute willingly. By doing so, she endowed him with the right to her estate.

Chapter 22, Halachot 1-2.

In Talmudic times, Jewish marriage was a two-staged relationship. First, a husband would consecrate a woman as his wife (kiddushin or erusin in Hebrew), but they would not live together as a married couple. Sometime later, they would enter the chupah, which signifies the woman’s entering her husband’s home. Today, both these phases of marriage are performed together.

For that marriage is effective only according to Rabbinic decree and cannot supersede the rights to inheritance granted by Scriptural Law. Since she is not responsible for her own actions, she cannot transfer the right to her property.

If, however, the marriage bond is affirmed after she becomes aware, the husband does have the right to inherit her property.

Hilchot Ishut 22:4.

This addition was intended to clarify the distinction between the points mentioned in this halachah and those mentioned in Halachah 11.

Even though the husband did not have use of this property in his wife’s lifetime, he has the right to inherit it.

The Maggid Mishneh states that there is no explicit Talmudic source for this concept. Nevertheless, since Kiddushin 45b states that a husband does not inherit his wife’s estate if there is a question of the validity of his consecration of her, we assume that the same principles apply with regard to divorce. As long as there is even a possibility that the divorce may be valid, the husband does not inherit the woman’s estate.
The Ra’avad objects to the Rambam’s ruling, maintaining that until a divorce is proven to be valid, a husband has the rights to his wife’s estate. The Maggid Mishneh justifies the Rambam’s ruling, but states that there is a long-standing difference of opinion regarding this matter among the Rabbinic authorities. The Shulchan Aruch (Even HaEzer 90:5) quotes the Rambam’s ruling.

As explained in Hilchot Ishut 4:7-8, our Sages ordained the possibility of the marriage of a fatherless girl below the age of majority. She or her relatives may arrange her marriage. Although the marriage may take effect immediately, the girl has the right to nullify it before she attains majority. That nullification is referred to as mi'un. Nevertheless, mi'un is necessary only when the girl has some conception of what marriage is. Thus, if she is below the age of six, or between six and ten and she was tested and it was obvious that she did not appreciate what marriage meant, mi'un is not necessary to annul the marriage; she may simply go home. This is the situation the Rambam is describing.

Even when she did not leave his home.

See Hilchot Ishut 11:6, 22:4.

In other cases of inheritance - and even in this instance with regard to the woman’s other heirs - an estate is transferred to a deceased person, and from him transferred to his living heirs. Hence, one might think that the estate would be transferred to the woman, and from her to her husband. This is not the case. Instead, our Sages gave a man the right to inherit only the property that is in her possession at the time of her death, but not what she would acquire afterwards.

The Maggid Mishneh quotes a difference of opinion among the Rabbis if the husband’s rights to his wife’s estate can be compared to those of a firstborn with regard to his double share of the inheritance. (See Chapter 3, Halachah 1.) According to that comparison, a husband would also not inherit a loan that is owed to his wife or the proceeds from investments she made. Based on the wording of this halachah and of Hilchot Zechiyah UMatanah 12:12, it appears that the Rambam maintains that the husband does not inherit that property. This opinion is also cited by the Shulchan Aruch (Even HaEzer 90:1).

As we would say with regard to his inheritance of his father’s estate or that of his other relatives.

Needless to say, if the woman has children of her own, they inherit her estate.

I.e., if he has maternal brothers who are alive, they would inherit the estate, for they have the same right to it as he does. We are speaking about an instance where he has no maternal brothers (and no descendants). He does, however, have paternal brothers, sons born to his father by another woman.

The Maggid Mishneh explains that the son also does not inherit his mother’s estate for the sake of his father. For example, in an instance where the couple is divorced and have a son. The father is the son’s heir. If the son dies before the father, the father does not acquire the rights to the mother’s estate because of the son.

Even if it is unlikely that he will survive. The Ra’avad differs with the Rambam and maintains that if it is unlikely that the premature baby will survive, it is not considered a viable birth, and he is not given the status of an heir. The Shulchan Aruch (Choshen Mishpat 276:5) does not mention a premature birth, leading the authorities to assume that he accepts the Ra’avad’s view.