(By Rabbi Yair Hoffman for 5TJT.com)
A father passes away and is buried in the local cemetery. The children move away. The mother moves to live next to the children. Can the deceased be re-interred next to where the wife and children now live? What are the parameters of when and if it is ever permitted? What if the family has moved to Eretz Yisroel?
Also, what is the current situation with general burial in Eretz Yisroel? Is it smooth-sailing? Are there pitfalls, dangers or snags? If so, what should one watch out for?
MOVING A DECEASED
The Kol Bo (114), as cited by the Shach (YD writes that moving a deceased is disturbing and confusing to the one who has passed away – as is alluded in the response of Iyov to his friends (Iyov 3:12), “For now, I would be lying tranquilly; I would sleep, then it would be restful for me.” He further cites the prophet Shmuel in his response to Shaul HaMelech when he was raised from the dead for a consultation (Shmuel Aleph 28:15), “Why have you disturbed me to arise?”
The confusion is on account of the fear that the deceased have of the Day of Judgement.
The Shulchan Aruch thus rules that one may not, in general, reinter a deceased from an honorable gravesite to another honorable gravesite or even from an embarrassing gravesite to a more honorable gravesite. The Shulchan Aruch does qualify this ruling by saying that if it is “betoch shelo” within his own – then it is permitted – even from an honorable gravesite to an embarrassing one. The reason is that it is desirable to a person to be buried next to his forefathers.
But what does “betoch shelo” mean and what does it include? The Shach explains that it means if he is to be reinterred to be with his fathers. The TaZ, however, implies that the deceased may be moved to be next to any family member. The Be’er HaGolah has the ame more lenient view.
RAV FEINSTEIN’S VIEW
On January 21, 1949, Rav Moshe Feinstein zt”l wrote a response (Igros Moshe YD Vol. I #237) to Rabbi Yaakov Donishefsky about this very topic and stated that although the distinction between the Shach’s view and that of the Taz is duly noted, this is not sufficient proof to rely on it in order to permit reburial when a mother wishes to be buried next to her son. Rav Moshe Feinstein also notes that Rav Meir Simcha of Dvinsk (Or Sameach at the end of Hilchos Avel) permits it even in cases of other family members and even if it is just to be in a family plot. He writes that Rav Meir Simcha’s proofs are weak, but who can protest if someone wishes to rely upon his view? Rav Moshe concludes the responsum by saying that he is not telling Rav Donishevsky what to do and that he should look into it himself and decide for himself.
Nine years later, on March 5th, 1958, in a responsum to Rabbi Yaakov Max of Baltimore, Rav Feinstein points out that there are two explanations of the definition of betoch shelo that are cited in the Prisha.
THE APPARENT CONTRADICTION
The Talmud Yerushalmi Moed Kotton 4:2 seems to imply that it would only be permitted for a deceased to be buried next to his father. Yet Meseches Smachos chapter 13 seems to imply a more lenient view. Although Rav Feinstein’s stance seems to be more understanding of the lenient view in the 1958 responsum, he still does not rule that it is permitted to do so. The matter remains somewhat controversial (see the responsum of the Klausenberger Rebbe Divrei Yatziv YD 226 for some qualifications).
REINTERMENT IN ERETZ YISROEL
The Shulchan Aruch, however, clearly rules that to reinter in Eretz Yisroel would be entirely permitted. Rav Feinstein zt”l also states that the halacha is clearly like the Shulchan Aruch and the Rishonim who rule in this manner. Yet, perhaps surprisingly, many Chassidic Poskim do not follow this view.
The reason for this stringency against the view of the Shulchan Aruch is because the Zohar seems to imply in three different places that burial in Israel wherein the deceased receives atonement is only for those that merited to be in Eretz Yisroel in their lifetime. This is the implication in Zohar Parshas VaYechi 225b, Parshas Trumah 141b and Parshas Acharei Mos 72b. This also seems to be the view of Rebbe Bar Kiryah cited in Yerushalmi Klayim 9:3. The Klausenberger Rebbe in his responsum Divrei Yatziv (Yore Deah 224) rules that the Chassidic view is to rule like the Zohar in this matter – particularly when the person had purchased a plot outside of Israel.
As far as general burial in Eretz Yisroel – it is fraught, unfortunately, with horror stories. The reality is that people generally tend to buy their burial plots in their fifties. They survive well into their eighties. Most people purchase their plots and do not look at it for quite some time – until they need it. This can be a recipe for disaster.
There are horror stories where, for example, someone had purchased a plot two decades earlier and the family only finds out that the particular plot they had purchased had been sold to someone else and that other person is now buried there. The decades-long difference between the sale of the land and the use of the land is a recipe for disaster. And disasters have, unfortunately, happened. Thankfully, most people have good experiences, but people should still take steps to protect themselves. Chazal tell us (Meseches Derech Eretz chapter 5) “kabdeihu v’chashdeihu – honor him but be distrustful of him” for a reason.
Another recipe for disaster is when people pay cash. Somehow, at times the cash can get lost and there is no record whatsoever of the transaction. It is best to pay by check and write in the memo what plots were purchased. Then take a photograph of it and email it to yourself.
Sometimes the errors are not criminal, just negligence. Other times, however, there is out and out criminal activity. There is one community where one individual sold over two dozen plots and not one of them was registered with the cemetery in Israel. Under such circumstances, one should independently verify with the cemetery in Israel and make sure that the contact information was obtained independently.
THE CONDOMINIUM PROBLEM
One of the cemeteries on Har HaMenuchos has sold burial plots that were initially on gorund level land with nothing on top of them. Those that bought it for their parents had no idea that two years later, veritable apartment buildings of other deceased people have been built on top of them. What they have done is they have poured a concrete structure above the land and have placed more dirt on top of the concrete. It seems to this author that this is out-and-out theft in that they never informed the purchasers about this possibility. In pouring this concrete and adding more “room in the cemetery” – they have changed those graves from a makom kavod to a makom b’zuyah. Buyers should therefore exercise caution when dealing with them.
On the plus side, when burying in Eretz Yisroel – there is often an 18 hour lag between the funeral and the actual burial. This time could be used to straighten out problems.
It seems that the view of the Litvish Poskim is that to reinter to Eretz Yisroel would be permitted if the family is located there. The Chassidish Poskim are more reticent to permit it based upon the Zohar’s view. In each case, a Posaik should be consulted. As far as the second issue brought up about being careful – the best practices discussed above should not be ignored.
The author can be reached at [email protected]