BURIAL OF A SECOND WIFE
A woman in her seventies was the second wife of a man who died recently at the age of eighty-four. The man had been married before and had children by his first wife. At the request of his children (and evidently with the consent of his second wife), he was buried beside his first wife. Now his second wife says that she and her husband had twenty-five good years together and she also wants to be buried by his side. Should this be permitted? (Asked by Rabbi Philip S. Bernstein, Rochester, New York.)
WHAT OUGHT TO BE a straightforward situation is somewhat complicated by the need for further facts. For example, it would make a difference whether the second wife had been married before and had or did not have children with her first husband. Also, it would make a difference whether the second husband, about whom the inquiry is now being made, was buried in a family plot in which there are still vacant graves, or whether he was buried in a small plot—for example, a double grave, or in a row where one space had been reserved for him when his first wife died. If he is not buried in a good-sized family plot where there is vacant space, then the request of the second wife would involve disinterment, which creates further complications in Jewish legal tradition. Let us, therefore, take up the question systematically.
First of all, the more general question: Is there objection in Jewish tradition to men and women being buried side by side? Some Orthodox cemeteries nowadays follow the custom of separate rows for men and women, but the custom of separate rows has no firm basis in Jewish law. See the whole discussion in Modern Reform Responsa, pp. 260 ff., especially on p. 262, where Rabbi Elazar Margoshes reports that in all the historic Jewish cemeteries, in Lemberg, etc., men and women are buried side by side.
The second basic question is this: Does Jewish law consider that a man who marries a second time still has a family relationship with his deceased first wife (as to whether or not he should be buried by her side)? This is a moot question in Jewish law. In fact, the great Hungarian authority, Moses Sofer, says that when a man is remarried, his relationship to his first wife no longer exists. But this is not the majority opinion. The weight of legal opinion is that the first relationship still exists; that he should, for example, keep her yahrzeit (but not at home in the presence of his second wife). As for burial, the custom is fairly well established that he should be buried with his first wife if he had children with her. This is what was done in the case about which this question is raised, and it may be deemed to have been a proper procedure. See the specific discussion of this question in Reform Jewish Practice, Vol. I, p. 147. (By the way, the reference there is given to Greenwald’s Och Letsoro, p. 145. This book of the late Rabbi Greenwald was displaced by his later and improved Kol Bo Al Avelus. There the question is discussed on p. 188.)
Now the specific question asked here is whether the second wife should also be buried with the deceased husband. If the second wife had been married before and had children by her first husband, then custom (though not necessarily the law) would require that she be buried with her first husband, especially if her children by her first husband request it. But if she was not married before, or had been married before and had no children by her first husband, there would be no objection to her being buried by the present husband’s grave.
But one more matter is involved here: If there is no room for her to be buried by his side unless he be disinterred (which would also involve disinterring his first wife), then this cannot be permitted. In general, disinterment is frowned upon by Jewish law (as, by the way, according to civil law also, it is to be avoided). In Jewish law, disinterment may be permitted only under four conditions: (1) if the first burial was conditional, i.e., if it was carried out with the understanding that the body was to be moved later; (2) to bury a man in an already existing parental plot; (3) if the present burial place is unsafe; (4) to rebury in the Holy Land (see Shulchan Aruch, Yore Deah 363:1).
The answer, then, to the question should be condi tionally as follows: If the woman had no children by her preceding husband, and if the burial will require no disinterment, then there is no objection in Jewish law and tradition for her to be buried by her husband’s side, even though his first wife is already buried by his side.