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Shabbat Parashat Naso| 5764
From the works of Hagaon Harav Shaul Yisraeli zt”l - Exhuming of a Grave- Part I - Based on Amud Hay’mini, siman 35
Rav Yisraeli was asked by the Rabbinate of Milan, Italy whether it is permissible to exhume a body under the following circumstances. A year ago, a man buried his wife in a plot of land belonging to her family. It turns out that there is no room for the husband to be buried there (after 120). May the husband buy a different plot of land for himself and his wife and transfer her grave to it?
One of the few cases where it is permitted to exhume a grave is in order to transfer the remains to the plot of the family graves (Shulchan Aruch, Yoreh Deah 363:1, as explained by commentators, ad loc.). Although the Shulchan Aruch mentions “his forefathers’ graves,” the same is true of other close relatives (Shut Chatam Sofer, YD 331). The apparent reason why forefathers were mentioned is to teach us that one can even move remains from the proximity of more distant relatives to closer ones.
The question which needs to be clarified, then, is how close a husband is in the scheme of a family. We seem to have a direct answer to the question. The Shulchan Aruch (YD 366:4) states: “If her father says that she should be buried by him and her husband says by him, she is buried next to her husband. Others have the text ‘by her father’.” Under the circumstances that the Shulchan Aruch does not clearly rule in one direction it seems appropriate to leave the situation as is.
There is some question as to whether the aforementioned halacha refers to a case where the deceased expressed a preference or not (see Perisha, ad loc.) [see analysis in Amud Hay’mini]. The most logical explanation is that we are talking about a case where the wife expressed a desire to be buried with her family, but the husband protests. He claims that, although he is required to pay for his wife’s burial, that is only if she is buried in his plot. The two opinions refer to that case.
If so, we do not have a direct source about a case where the wife did not express a preference. However, the implication is that the normal thing is for a woman to be buried next to her husband. Otherwise, the husband would have no basis for the demand that his wife be buried by him if they want him to pay. We do find in several places (see Ketubot 66b) that a wife is like one’s own body. We do find in the Torah the term “sh’er” (close relative) in reference to a husband (regarding inheritance and a kohen at burial; see also Bereishit 2:24, “they will be one flesh.)” These citations are particularly significant as they relate to the relationship after the wife’s death (as in our case). However, not in regard to all laws is a widower considered his wife’s husband after her death. The laws of not testifying for or with relatives through marriage do not continue after her death (Sanhedrin 28b). The gemara explains that the latter halacha depends less on legal status than on a “mental closeness.” It would seem that our issue of preference in burial also depends on psychology. On the other hand, this source talks of “break-up” of the family after the wife’s death in regard to her relatives, not the spousal relationship itself.
At first glance the matter of status of husband and wife after death seems to be the subject of debate between different passages in Tosafot (Yevamot 55b; Bava Batra 114b). [We will start from there next time].
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