Shabbat Parashat Vayigash| 5771
P’ninat Mishpat: Right of a Widow to Stay in an Apartment(condensed from Shurat Hadin, vol. III, pp. 144-149)
Case: A woman (=pl) was widowed from her husband of a second marriage (for both), who also left a daughter and a son (=def). The deceased left a will written in the form of “from today and taking effect after death” in which he bequeathed his home in which the couple lived to his children but said that they should give his widow 10,000 liras if they ask her to leave. Afterward, he transferred ownership in the Tabu to the children. Pl wants to stay in the home, as is the standard arrangement the Rabbis prescribed. She is not demanding payment of her ketuba or other support, as she earns money. Def want to pay the ketuba after which, they claim, according to Ashkenazi minhag, they can remove her from the home without paying for another one.
Ruling: Although the Rama (Even Haezer 93:3) says that inheritors can pay the ketuba off before the widow asks for it, the Shevut Yaakov says that this only exempts them from paying mezonot support but does not allow them to remove her from the home they inherited.
What could make the home off limits to pl is the fact that the will, which was written in the form of a present to his children, might make the home not inherited but belonging to def independently, in which case it would not be available for payment of pl’s rights. On the other hand, the Rama (EH 100:1) cites an opinion that if a present was given to someone who was destined to have inherited, then the property is usable for payment of a ketuba, which is taken from inheritance property. The Mordechai extends this rule to payment of mezonot. However, this applies to the son, but to the daughter, who was not fit to inherit without a present, there would not be an obligation to use the deceased’s property that she received for mezonot or the related right for housing. If so, the daughter could force pl to let her share the home, which pl would never agree to, and thus pl’s rights could only extend to the son having to pay for her rent. That, though, is a more standard type of mezonot payment, similar to a case where the home she lived in with the deceased fell (see Shulchan Aruch, EH 94:2). Therefore, he could choose to pay the ketuba and be exempt from mezonot, as stated above, or exempt himself as long as she is earning enough money to support herself.
The following is further reason to say that pl does not have a right to payment. The aforementioned opinion that a present to an inheritor is like inheritance and thus is subject to payment to a widow is far from unanimous, and thus we cannot extract payment out of doubt. Although the Beit Shmuel (93:21) says that property is muchzak to a widow (i.e., the status quo is in her favor), that is only when there was once a clear obligation to pay her mezonot and the question is whether it ceased. Since it is unclear, in this case, whether the obligation of mezonot ever began, that is another reason to say that def is exempt from paying pl.
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R' Meir ben