Mr. Ginsberg passed away at the age of 95. Unfortunately, he had never married and had no children. His two brothers had also passed away some years ago, so that he was survived by his nieces and nephews, his brothers’ children.
Mr. Ginsberg’s older brother had two daughters, and the younger one two sons.
Mr. Ginsberg had never written a will, so the court divided his estate, according to intestate law, equally between the four nieces and nephews.
The nieces were concerned, though, whether they had a right to accept their awarded share of the inheritance, since they knew that sons have halachic priority over daughters, and reasoned that the same is true for nephews and nieces.
Some people told them not to worry about it, since this was the law of the land (dina d’malchusa). Other people told them that it was a problem, since dina d’malchusa does not apply to inheritance, so they had no right to take the money.
The nieces turned to Rabbi Dayan, and asked whether they were allowed to take the court-awarded share of the inheritance?
Rabbi Dayan heard the details of the case, and replied: “In your particular case, there is no issue whatsoever!”
The nieces were happy to hear this, but were surprised at the response, and asked:
“Why is our case special? Why is there no issue for us?”
“Indeed, according to halacha, a daughter is not entitled to a share in the estate in the presence of sons,” replied Rabbi Dayan. “The Torah states, regarding the daughters of Tzelofchad: ‘If a person dies and does not have a son, transfer his inheritance to his daughter'” (Bamidbar 27:8).
“This applies not only to children, but also to grandchildren and other relations: brother/sister; nephew/niece. Thus, if a person has one child who passed away in his lifetime and left a son and a daughter, the grandson has halachic priority over the granddaughter in the estate. Similarly, if a person has no children, only brothers and sisters, the brothers have priority over the sisters.
“However, there is another principle, whose practical application sometimes leads to what might seem like an exception. The principle is that the descendants of a person most often stand in his place to inherit, when that person predeceases his inheritors.
“Thus, if a person had a son and a daughter who predeceased him, and they both had children, the grandchildren stand in the place of their respective parents. Therefore, if the son had a daughter and the daughter had a son – here the granddaughter has priority over the grandson, since she stands in place of the son, whereas the grandson stands in place of the daughter” (C.M. 276:1).
“Moreover, if a person had a son and a daughter, and the son predeceased his father, leaving a granddaughter, the granddaughter has priority over the daughter, since the granddaughter stands in the place of the son” (C.M. 276:2).
“Similarly, if a person had two sons who passed away, one who left a son and one who left a daughter, the two grandchildren inherit equally, since each stands in the place of one son” (C.M. 276:3).
“The same is true regarding nieces and nephews, when the deceased has no children or siblings alive. A nephew takes priority over a niece from that same sibling. However, a niece from a brother takes priority over a nephew from a sister (or even the sister herself), since the niece stands in the place of the brother.
“Thus, in our case, where the nieces stand in the place of one brother and the nephews stand in the place of another, each set is entitled to their parent’s equal share,” concluded Rabbi Dayan. “The actual question of non-halachic inheritance between a son and a daughter or between a brother and sister, be”H we will address on another occasion.”
Verdict: A descendant stands in the place of his parent regarding priority of halachic inheritance.
