“There is no such thing as a ‘quick and easy divorce.’ But there is such a thing as a Torahdig divorce”
As a halachic estate planning attorney, I especially enjoyed Allan Gibber’s article regarding wills and how a halachic will is handled in America (with its 50 states and their differing laws dealing with distribution and taxation of assets upon death). However, he did not mention Israel, where Mishpacha magazine has a large following. Also, certain important points were not mentioned.
A basic distinction must be made between the timing of probate (court administration of a will) in America and Israel: In America, probate for a married couple is deferred until the surviving spouse dies; in Israel, probate occurs after each death.
As Attorney Gibber pointed out, while there is only one halachah regarding testamentary (after death) distribution, inter vivos gifting (before death) can halachically achieve personal intentions (e.g., those of a husband to a wife and daughters, not only to sons). However, there is a difference between the two countries in their secular definition of “jointly held property” by a married couple (whether a bank account or real estate). In Israel, each spouse only owns 50 percent of a “jointly held” asset; in America, each spouse owns 100 percent of it. This affects distribution if a joint tenant dies intestate (without a will), leaving the distribution to the secular, non-halachic laws of the state/medinah where the asset is situated.
A will is only a statement of intent to the state/medinah of how the will writer (testator/testatrix) wants the assets distributed; it is not a contract. Therefore, to be more assured that the will writer’s intentions are carried out and are incontestable by a disgruntled beneficiary, it is wise to write a prenuptial and/or a postnuptial agreement, which is a contract between the husband and wife. Obviously, for Jews, halachic considerations should be included.
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