SOME BURIAL DUTIES
An Israeli widower remarried for ten years to an American Jewess died recently and was buried in the family plot in Rochester. His sons want to know whether or not it is incumbent upon them to have him disinterred to be reburied in Israel. Furthermore, if some disagreement will arise between the wife and her husband’s sons, which of the two parties have the right to determine where he shall be buried? (Asked by Rabbi Philip Bernstein, Rochester, New York.)
THE FIRST QUESTION is whether burial in Palestine should be deemed a duty and that therefore the sons should deem themselves obligated to have their father’s body disinterred and reburied there. In Yore Deah 363:1 there are mentioned three circumstances under which it would be permitted to disinter a body: first, if the body was buried with the prior intention to disinter for reburial elsewhere; second, to bury in the family plot; and third, to take the body to the Holy Land for reburial. Now it cannot be said that any of these three reasons for disinterment and reburial involves a duty to do so. If it were a duty to rebury, for example, in the Holy Land, then we would have no right to have cemeteries in the diaspora. As a matter of fact, by tradition, when Messiah comes all bodies, wherever buried, will find their way to the Holy Land to be resurrected there by the Messiah; and also it is a custom to put Palestinian earth on the body (see Isserles, ibid.) which is symbolic of Palestinian burial. Of course it is deemed preferable to be buried in the Holy Land, based on the verse: “His land (i.e., the Holy Land) will atone for His people,” (Deut. 32:43). (This traditional translation is not meant to be literal.) But although burial in the Holy Land is preferable, it is obviously not mandatory and the Shulchan Aruch, ibid., properly says, “It is permitted to disinter for this purpose.” So the sons are in no sense obligated to have the body disinterred to rebury in Israel.
The second question involved in the inquiry is the more complicated, namely: If there is a disagreement as to the question of disinterment and reburial, whose decision should be valid, the American widow’s or the sons’? Perhaps the clearest answer would be based upon the analogy in this regard between English- American common law and Jewish law. In the English-American law the widow has absolute right to determine where the husband is to be buried. If, for example, the widow is a Catholic and the husband is a Jew, then even though the husband owns a lot in the Jewish cemetery and has specifically stated in his will that he wants to be buried in the Jewish cemetery, in spite of all this the widow has the legal right to say that he shall be buried in the Catholic cemetery. Should the deceased have been a widower, then his other heirs have the right in place of his widow to determine where he shall be buried. So in our English- American law the right to determine the place of burial is bound up with the right of inheritance. The widow always inherits a certain portion of the estate and with it the right to dispose of the husband’s body.
On this basis we can make a helpful comparison with Jewish law: In Jewish law the wife is absolutely not an heir of the husband’s estate. When the husband dies the wife has the right to take only the sum mentioned in her wedding document (ketubah) and certain property which she brought into the marriage. She also has the right to be clothed, fed and housed from the estate, but she is in no sense an heir of her husband’s property; only the sons are heirs. Therefore if by analogy we have a right to connect the decision as to the place of burial with the right of inheritance, then we would say that in Jewish law only the sons are the heirs (not counting special gifts that the deceased may have made) and only they have the exclusive right to determine the place of burial of their father, and the wife who is not an heir has no such right.
That this is a justified analogy can be seen from the actual facts in Jewish law on this matter. Greenwald in Kol Bo, p. 174, states the law on the basis of the question: Who is in duty bound to pay the expenses of burial? Naturally the one who is in duty bound to pay is the one who is responsible for the burial and, therefore, has the right to make determinations about it. He states the law that it is the sons who are responsible for their father’s burial. This is implied in the statement in the Shulchan Aruch, Yore Deah 240:9, which states that the son must honor his father in death as well as in life, which is taken to mean that it is his duty to see about the burial. Greenwald bases his statement as to the son’s right upon the responsum of Yair Chaim Bachrach (Chavas Yair, # 13 9) and in turn, Bachrach bases his opinion on Moses Mintz (14th century) Responsum #53, all of whom make it clear that the son has the responsibility and privilege of burial because he is the father’s heir. As a matter of fact the Shulchan Aruch states that clearly too. In Even Hoezer 118:18 the law is given as follows: If a widow after her husband’s death has already collected the amount in her ketubah, and if after she has collected it there is no money left in the estate to pay for his burial, then even so she is not in duty bound to provide for the burial; to which Isserles adds, “Let him then be buried at the expense of the community.” This opinion is based upon a number of earlier authorities such as Asher ben Yehiel, Nachmanides, Solomon ben Aderet and others.
To sum up: Burial in the Holy Land is one of the three reasons for which disinterment is permitted, but such burial is not an obligation. As to who has the right to determine the place of burial, only the sons who are the heirs have that right.