WHEN TO SET THE TOMBSTONE
There is a widespread custom in the community not to set the tombstone until a full year has passed after the death. This custom is followed by members of various types of congregations in the community. Is this twelve-month wait a requirement of the law? (Asked by I.E., Pittsburgh, Pennsylvania.)
There is no question that it is a widespread observance to wait twelve months after the death before setting the tombstone. Hirshowitz in his Minhagei Yisrael gives this twelve-month wait as an established custom which needs no comment. And Eisenstein in his Otzar Dinim is even more emphatic. He says that the tombstone is to be set twelve months after the death and no later.
This widespread custom has certain justifications. It is held that the departed are constantly in the heart of the mourners for twelve months (and so they need no permanent memorial like a tombstone until twelve months have passed). A second reason is given, that the tombstone is something additional and special; and mourners, before the year has passed do not feel like setting it up.
So one would think that such a widespread custom which also has some reasoning behind it would be well established in the law as a requirement. But actually that is not so. The law, as strict law, is entirely different. Eliezer Spiro, the Chassidic authority a generation ago, in his Minhat Eliezer Vol. III, #37, declares the custom to be a mistaken one. He bases his decision on the fact that according to the Jaw, the head of the household, during the seven days of mourning (shiva) may leave the family to go and provide for the tombstone. If it were proper to wait a year, the law would not give him permission to be so urgent to provide for the stone. As a matter of fact, the law as strict law seems to be that one must provide for the tombstone as soon as possible after the week of mourning; and as a matter of significant precedent, Moses Sofer set the tombstone for his departed wife immediately after shiva and so, also, did Chaim of Sanz (the author of Shivat Hayyim). These and other statements of the actual law are collected by Greenwald in his Kol Bo, p. 379 ff. Cf. also She-slat Yitzhaq Vol. 2, 161.
We have, then, here a classic example of a confrontation between an established custom (to wait twelve months) and the clear law (not to delay the setting of the stone). This confrontation between custom and law has frequently occurred in Jewish life. See Isaac Lamperonti in Pahad Yitzhaq, the pages of reference under the heading minhag mevatel halakhah.
Therefore in this case there is clearly freedom of action. The custom of waiting a year is not at all binding. Of course a person may not want to arouse discussion in the community if the tombstone is set earlier, but if for any good reason it is important that the tombstone be set earlier, the law supports that action.