1)WHEN DOES A HUSBAND FORFEIT INHERITANCE?
1.(Rav Yehudah): A case occurred in which a Chasan heard that his wife cannot smell. He entered a ruin with her, and said 'I smell a radish in Galil.'
i.His wife: If only someone would give me dates of Yericho, I would eat them!
ii.The ruin collapsed, and she died. Chachamim ruled that since he was testing her, he does not inherit her.
2.Chachamim ruled that since he entered to test her, he does not inherit her.
3.Gitin 17a (R. Yochanan): According to Chachamim, we enacted to put the date on a Get lest a woman commit adultery, and her husband save her from execution by giving her a dateless Get. R. Shimon holds that the date on a Get is due to Peros. (He holds that the husband forfeits Peros from when he writes the Get, even if not yet signed.)
4.Chachamim hold that he eats the Peros until the Get is given.
5.According to Reish Lakish, R. Shimon holds that she gets the Peros from the writing of the Get. Chachamim say that she gets them from when it is signed.
1.Rif and Rosh (Kesuvos 27a and 5:35): If a woman does not desire her husband and requests a divorce, our practice is to force him to divorce her, without a Kesuvah. However, if she was sick and requests a divorce, there is no enactment (he need not divorce her). Some disagree. Presumably, we do not uproot inheritance mid'Oraisa. Surely if one must divorce his wife, mid'Oraisa or mid'Rabanan, and she died before he did so, he inherits her. Only proper divorce uproots inheritance mid'Oraisa.
2.Rambam (Hilchos Ishus 22:6): The Ge'onim ruled that if a woman became sick and asked her husband to divorce her and she will leave without a Kesuvah, in order that he will not inherit her, we do not heed her. Even if she said 'I hate him. I do not want to remain with him', we do not heed her, and she is not considered Moredes (one who rebels against her husband). This is proper.
3.Rosh (Bava Basra 9:16): The Rashbam explains that she was Nesu'ah. Since he entered to test her and planned to divorce her if she has the blemish, and she died before he accepted her, he does not inherit her. We learn from here that if a wife died amidst a quarrel and he intended to divorce her, he does not inherit her. We say that once he intends to divorce her, he does not receive Peros of her property (Gitin 18a). Some texts say 'since he entered only to test her', and they establish the case to be that she was an Arusah (Mekudeshes). This is difficult, for even if he had Bi'ah with her, he does not inherit her (Kesuvos 53a)! This is not difficult, for if she entered his Chatzer, we assume that it was for Nisu'in. It was his ruin, and he says that he intended for Nisu'in if she can smell, and he found that she can smell. Therefore, she was fully married, and he inherits her. Chachamim ruled that since he entered only to test her, her entering is not considered Nisu'in, so he does not inherit her. Now, there is no proof to the Rashbam's Halachah. There is no proof from the law of Peros. Firstly, R. Yochanan disagrees. Also, he loses Peros only if he divorces her in the end. Also, how can we learn from Peros, which is an enactment mid'Rabanan? Perhaps they did not enact when he intends to divorce her! Inheritance is mid'Oraisa. It is not uprooted if he hates her. If a son hates his father, does he not inherit him?! Also, if she was already Nesu'ah, why did he need to enter a ruin to test her? He could test her in his house!
i.Nimukei Yosef (DH Garsinan): She smelled that he had dates with him, and answered him jokingly. She was only Mekudeshes, but had she entered for the sake of Nisu'in, he would have inherited her. We learn from here that if an Arusah entered the Arus' house, and he entered after her, we say that it was l'Shem Nisu'in, and he inherits her.
ii.Mordechai (612): Avi ha'Ezri says that even those who explain like the Rashbam say that he forfeits inheritance only because he acted improperly; it is improper to divorce for such a minor blemish. R. Avraham says that 'your wife cannot smell' connotes that she was Nesu'ah. Also, a ruin is not a place of seclusion for Nisu'in. Since he claimed that his Kidushin was mistaken, he admitted that he does not inherit her.
1.Rema (EH 90:5): As long as she was not divorced, even if he intended to divorce her, he inherits her.
i.Beis Shmuel (21): This is unlike the Rashbam, who says that she was Nesu'ah. All the Poskim argue with him.
ii.Gra (17): Also Hagahos Maimoniyos (Ishus Teshuvah 35) holds like the Rashbam and brings the Rashbam's proofs.
iii.Pischei Teshuvah (8): The Chasam Sofer says that even the Rashbam says that he forfeits inheritance only before R. Gershom's enactment (that one cannot divorce a wife against her will). Nowadays, a man who wants to divorce is no different than a woman who wants to be divorce. This is not called a quarrel. The Yam Shel Shlomo (Gitin 2:4) says that if a couple agreed to a divorce and she died, he does not mourn over her, for we follow the lenient opinion in Aveilus.
iv.Taz (9): The Tur says that only full divorce uproots inheritance. He does not exclude one who promised to divorce, and made a Kinyan or swore about this. Even though we permit all oaths and Kinyanim at the time of divorced, since he did an act to cut her off, he does not inherit her. 'Only full divorce' excludes one who intended to divorce, but did nothing. This is like one who waives rights to his wife's Peros. It takes effect only if he did a Kinyan. This is like the Rema brings below, that if one forbade her through a vow (some say that he does not inherit her). Even the Rosh would agree with the Rashbam about this.
2.Rema: If one claims that his wife had blemishes, and his Kinyan was mistaken, if she died, he does not inherit her.
i.Chelkas Mechokek (15): Regarding Kidushin, she needs a Get due to Safek. Regarding money, we leave it in its Chazakah.
ii.Beis Shmuel (22): This opinion is like the Rashbam. We do not find that inability to smell is a blemish. Perhaps he stipulated about this.
3.Rema: If she rebelled against him and she died, he inherits her.
i.Taz (10): The Rambam holds that normally, if a woman says that her husband repulses her, we force him to divorce her. This is when she is healthy and wants to remarry. If she is sick and requests a Get so that he will not inherit her, we do not force him. Even though we hold that we never force one to divorce when she claims 'he repulses me', the Tur brought the Rambam, for it teaches about one whom we force to divorce, that we do not force if she is sick. Also the Shulchan Aruch should have brought this!
4.Rema: If one rebelled against his wife or forbade her through a vow and does not treat her like a wife, some say that if she died, he does not inherit her.
i.Beis Yosef (DH u'Mah she'Hevi): The Tur supports the Rosh from the Rambam. This is wrong. The Rambam discusses a woman who requests a divorce. We cannot learn to a man who wanted to divorce her!
ii.Chelkas Mechokek (17): Above, the Rema said that even if he intended to divorce her, he inherits her. Presumably, he was not treating her like a wife! The Darchei Moshe says that this is like the Rashbam, who says that one who intended to divorce her does not inherit her. The Rif and Rosh hold that he inherits her as long as he did not divorce her. However, perhaps this is only when he wants to treat her like a wife. We cannot learn to one who rebels against her or forbade her through a vow. I say that the Rif's words 'whoever we force to divorce...' includes one who rebelled against her.
iii.Beis Shmuel (23): Shiltei ha'Giborim (Kesuvos 27b:2) says that one who rebels against her does not inherit her. The Darchei Moshe says that the Rif and Rosh discuss one who treats her like a wife, but we force him to divorce her for another reason. I say that the Rif's words include anyone we force. The Mizrachi says that Shiltei ha'Giborim is a lone opinion.
DOES A HUSBAND INHERIT AFTER SAFEK DIVORCE? (Bava Basra 111)