Jewish Law

Lesson # 508 (part 1) - Laws of Primogeniture

Primogeniture is the halachic provision whereby a firstborn, if male, receives a special portion of the estate of his father. For example, Reuven’s mother was married to her first husband and had children with her first husband. The first husband divorced her or died. She then married Yaakov who had no previous children and has a child, Reuven by Yaakov. Such child, Reuven, is the firstborn for the purpose of primogeniture, although he is not the firstborn to his mother. The first born receives a primogeniture share only if he is the firstborn to the father and only from the father’s estate. He does not receive a primogeniture share of his mother’s estate even if he is her firstborn and also the firstborn of his father. He receives a portion of his mother’s estate equal to that of the other sons. In order to be the one whom the halacha recognizes as the firstborn, he must be born while his father is still alive. There is an opinion that if the father was in a coma when Reuven was born and died without recovering, that Reuven is not considered the firstborn for estate purposes. The verse states that the father “must recognize the firstborn” and if he is in a coma he cannot recognize him.

The firstborn to Yaakov, Shimon was born by a sectional birth and thereafter Reuven was born through a normal birth. Neither Shimon nor Reuven have the status of a firstborn in accordance with the laws of primogeniture (Rambam). Avraham is a proselyte, who before he converted had children with a non-Jewish woman; his firstborn with a Jewish woman after he converts does not have the status of a firstborn regarding primogeniture. A non-Jewish man has a child with a Jewish woman and after he converts has another son (whether or not with the same Jewish woman). This latter son is considered his firstborn for the purposes of primogeniture. The son that the non-Jew has with a Jewish woman is not considered his son according to halacha. The son is considered Jewish because his mother is Jewish, and the father who was not Jewish at the time the son was born is not considered related to the son. Thus his first son after he converted born to a Jewish woman is deemed to be his first son for the purposes of primogeniture. If Yaakov is a kohen and fathers a son Reuven with a woman who is a divorcee, Reuven is considered a firstborn for the purposes of primogeniture. Assuming that a question arises if Reuven is actually the firstborn. The testimony of witnesses is the highest form of proof. There may be documentary evidence such as letters of the father, birth records, or writings in a family Bible. The statements of the father made to people may be introduced if Beit Din finds it proper. If Reuven died and the eulogy refereed to him as the firstborn, it may be adequate to so establish him. The doctor (or midwife) who delivered Reuven is believed to state that Reuven is the firstborn of twin boys. He is believed if his statement is made contemporaneously with the birth. The mother is believed to state that Reuven is the firstborn of twin boys during the seven days after his birth. The father is away believed if he states that Reuven is his firstborn even if he names a person who is not known to be his son that he is his firstborn.

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