Bava Batra 128

On today’s daf, the Talmud lists a number of legal opinions that Rabbi Abba sent to Rav Yosef bar Hama. The collection includes the following:

“When one who says, “My wife will take (a portion of my estate) like one of the sons,” she takes a portion like one of the sons.”

At first glance, this statement might not seem right, as we learned from a mishnah at the beginning of the current chapter that while a woman’s property is inherited by her husband, a man’s property is not inherited by his wife. So how can Rabbi Abba suggest that a man can bequeath a portion of his estate to his wife equal in size to that which his sons inherit? The explanation is relatively straightforward: As we saw two days ago, a man can effectively circumvent inheritance laws by deeming his property a gift. 

The legal commentators are quick to point out that this gift is in addition to the property that a wife acquires through her ketubah (marriage contract) and not in place of it. Further, if the gift is made at a time when the husband is in good health, the rules of gift giving apply and the woman must formally accept the gift in order for it to become hers. But if the gift is made as a part of a deathbed declaration, the declaration is legal even without formal acquisition procedures.

Rava then clarifies Rabbi Abba’s statement in two ways. First, he says it applies only to property the husband possesses when he makes the declaration. If the husband added a piece of property to his estate after giving his wife a share, it is not included in the gift. This is in line with the principle that a person cannot make a gift of property that they do not yet own.

Second, Rava explains that the exact size of the property the wife acquires as a gift from her husband isn’t determined until the husband dies, as it depends on the number of sons who ultimately inherit their father’s estate. If more sons are born to the father after the gift is made, the size of each heir’s portion, the wife included, would proportionately shrink. Rashbam (who, like many other commentators, does not account for the first born’s double portion in his math) further suggests that just as a wife inherits less if more sons are born to her husband after the gift has been made, so too should the size of her share grow if some of the sons die before their father. So if a man had three sons at the time of the gift and they all survive him, the wife would get a quarter of the estate. But if one of the sons dies before the father and only two survive him, her share (and theirs) becomes one third of the estate.”

In general, when property changes hands, the scope of the property being transferred is determined at the time of the transfer. Rava teaches us that our case is an exception. When a man gives his wife a share of his estate, there are in fact two moments in time that are significant to determine what exactly becomes hers: the property in his possession at the time of his gift, and the number of heirs at the time of his death. Although this makes the process of dividing up his property a bit more complicated, it makes good talmudic sense to do it this way.

Read all of Bava Batra 128 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on October 31, 2024. If you are interested in receiving the newsletter, sign up here.