Levirate Marriage and the Family[ ]rabbinic law. Instead, the children are the legal offspring and thus the
heirs of t he lev ir. The children of t he lev irate union have no cla im on t he
estate of their mother’s first husband, save for their mother’s marriage
settlement should she predecease her husband.^17 Upon t he lev ir’s deat h,
his entire estate — including the portion he inherited through levirate
marriage — devolves on all of his surviving children. Should he leave
children by both his brother’s widow and another wife, all of his sons
would inherit sha res of t he estate w it h no distinction made bet ween t he
sons of the yevama and those of another woman. This division of prop-
erty follows logically from the rabbis’ decision to assign paternity of the
children of levirate to the levir.
Through this assignment, the rabbis acknowledge that the child of a
levirate union can in no way be said to preserve the name or the estate
of the dead. Rather than perpetuating a system in which the child dis-
places his biological father, the levir, the rabbis imagine one in which
the levir displaces the child he will father; the levir takes his brother’s
place, claiming both the wife and the property of the deceased. This
displacement or replacement is spelled out at Bavli Yevamot a. Com-
menting on the mishna, “It is the duty of the oldest [surviving brother]
to enter into a levirate union, but if a younger [brother] preempts [his
older brother], he acquires [the widow as his wife],” and analyzing the
language of Deuteronomy , the Bavli considers the focus on the oldest
surviving brother.
a. Our rabbis taught: “The first son” — from this [we learn] that it
is the duty of the oldest [brother] to perform levirate marriage.
“That she bears” — this excludes a sterile woman who cannot
give birth. “Shall be accounted to the dead brother” — in the
matter of inheritance. {Basing itself on the literal reading of ahiv
as “his brother,” the midrash indicates that the levir who marries
his sister-in-law should “take his brother’s place,” that is, inherit
his brother’s estate.}
b. You claim it refers to inheritance, but perhaps it refers to the
name. [If the deceased was named] Joseph, they name [the
firstborn of the levirate union] Joseph. [If the deceased was
named] Johanan, they name [the firstborn of the levirate union]
Johanan.