Her Children, Her Whim
‘Kesubas Bnin Dichrin’
(Kesubos 52b)
Our Gemara discusses the “kesubas bnin dichrin” clause, which our Sages incorporated into every kesubah. This clause stipulates that if the wife dies first, and her husband inherits her estate, only her children inherit her money after he dies, not his children from another wife.
The Gemara (52b) explains that this clause was enacted as a result of the common reluctance of fathers to give their daughters sizable dowries, for fear that their money might be inherited by children other than their grandchildren. The Gemara also explains why all the money of the kesubah, not only the dowry, is included in this clause.
Inheritance Or Debt?
There are two aspects of the kesubas bnin dichrin. On the one hand, it is part of inheritance law. Instead of the father’s estate being divided equally among his sons, each group of children inherit their mother’s kesubah, and the remaining money is divided equally. On the other hand, kesubas bnin dichrin is also a kind of debt; the husband obligates himself to pay money to his wife if he dies first or her children if she dies first.
The Gemara states that a woman may absolve her husband of his kesubas bnin dichrin obligation, thus allowing him to divide his inheritance equally amongst all his children, including those from another wife. We will now examine two possible ways of understanding how she relieves him of this obligation.
Obligations To A Third Party
If Reuven commits to give Shimon an amount of money, he must pay as promised. However, what is the law if Reuven promises Shimon to give money to Levi? The Rashba (Teshuvos HaRashba 1:1) rules that beis din cannot force him to pay. Beis din can only enforce monetary obligations between two parties. If a person promises to do his fellow a favor to a third person, and then reneges on his promise, beis din cannot intervene.
The Tosefos Rid, however, argues that beis din can force Reuven to give money to Levi.
Obligations To Wife And Children
As we noted above, a wife can absolve her husband of his kesubas bnin dichrin obligation. What right does she have to intervene in a father’s obligation to his children?
The Tosefos Rid explains that it is not an obligation of a father to his children, but rather an obligation a husband makes to his wife for her children. Therefore, she has the authority to relieve him of his obligation. This follows Tosefos Rid’s opinion that beis din recognizes an obligation Reuven makes to Shimon to pay money to Levi. Accordingly, beis din recognizes an obligation a husband made to his wife to pay money to his children. The woman is the debtor, not the children. Therefore, she can absolve the debt.
According to the Rashba (who argues that beis din cannot force Reuven to make good on his promise to Shimon to pay money to Levi), how can the wife absolve the debt owed her children? Perhaps the Rashba would argue that the debt was originally incurred towards his wife as part of the kesubah she would claim if he died first. Therefore, if she absolves the kesubah debt, there remains nothing to give to the children.