Question
We are two brothers and we just finished the shloshim for our father. My older brother, the bechor, did not get along with our father and even took him to a din Torah about a purported loan that he extended to our father but he had no proof to support his claim and, therefore, was unsuccessful in his din Torah. Our father wanted to be buried in Eretz Yisroel and purchased a burial place there. My brother told me that he will not pay anything for the cost of burying our father in Eretz Yisroel and if I bury him there, as I did, it will come out of my share in the yerusho. He also claimed that the burial plot is part of the yerusho and he is entitled to two thirds of the value and I get one third! Are his claims valid?
Answer
Whether the instructions of a deceased person concerning his burial have to be heeded has come up in many different ways over the course of Jewish history. We will first study the rulings of the poskim and SA and then explain their rationale.
The Rashbo (res 1, 369) was asked about a person who expressed his desire to be buried in the cemetery where the rest of his family was buried. However, when he died in a different place and could not be immediately buried where he requested, he was temporarily buried in the local cemetery. The Rashbo was asked whether they were allowed to move his body.
The Rashbo responded that not only was it permitted but it is a mitzva for his children to comply with his request. The ruling of the Rashbo is cited by the Beis Yosef (Bedek Habayis YD 363) and ruled by the Ramo (363, 2).
This responsum is cited by many later poskim including a famous ruling by the Chassam Sofer (res 6, 37) who was asked to decide a major dispute. Taking part in the controversy were R. Akiva Eiger and the son of the Noda Biyehuda and many others. The issue was the burial place of Rav Mordechai Benet, a Torah giant who had been the rav of Nicholsberg and had expressed his desire to be buried there. Upon his death he was buried in Lichtenschtadt, a small town near Karlesbadt, where he had passed away. The local community wanted his body to remain there, whereas the community of Nicholsberg wanted his body brought there.
The Chassam Sofer, whose ruling was decisive in this case, cited this ruling of the Rashbo as a reason to decide in favor of the Nicholsberg community.
The Chassam Sofer also cites as proof to honor the deceased’s expressed desire to be buried in a specific place, the ruling of the Maharshal (Yam Shel Shlomo Beitso 1, 13 and cited by Magen Avrohom 526, 18) concerning someone who had asked to be buried in a specific place but passed away on the second day of Yom Tov in a different place. He rules that in principle we are allowed to take his body on that day to the town where he wanted to be buried, even though this entails violating Yom Tov, and even though it was possible to bury him in the local Jewish cemetery thereby avoiding violating Yom Tov. The reason the Maharshal ruled that in practice we should not do so, is because the entire reason to heed his wishes is to honor the deceased and, in these circumstances, it is a breach of his honor to violate Yom Tov in order to bury him. Therefore, if it is necessary, due to decomposition, to bury immediately, we should bury the body locally on that day and move the body after Yom Tov. If not, we should wait till the next day and bury him in the requested place.
Having established that it is required to bury a deceased person in the place he wished to be buried, we have to understand the basis for this requirement. This is especially necessary in light of the ruling of Rabbeinu Tam (Tosafos Gittin 13A) that is ruled by the SA (CM 252, 2) that the concept of mitzvo lekayem divrei hameis (it is a mitzva to fulfill the deceased’s wishes), applies only to money that the deceased set aside for a specific purpose. Yet here the mitzvah applies as long as the deceased left behind money that suffices to cover the cost, even if it was never formally set aside for this purpose.
One approach is that the deceased, even though he is no longer alive, is not totally disengaged (the precise manner will be clarified later) from the money or other assets that he had and are needed for his burial in the manner that he desired.
One source for this approach is Rashi (Kesubos 95B) who explains that the reason the burial costs of a woman whose estate goes to her sons from a previous marriage and not to her present husband, are borne by the sons is because in that manner “she pays for her burial.” The idea of Rashi is that since her money goes to her sons, the part of the inheritance that is needed to cover the cost of her burial is hers to be used to cover the burial costs. Only whatever is left goes to those who inherit her estate. In other words, her needs precede the needs of her heirs. The Haflo’o in his commentary to Rashi states this explicitly and deduces from this a ruling that if her heirs have personal debts, their creditors can only collect from the portion of her estate that remains after the expenses needed to cover her burial have been completely paid for.
This is also stated explicitly by the Chavos Yo’eir (res 139 in parenthesis), namely, that the costs related to a deceased person’s burial are borne by the deceased himself and are not a part of the inheritance.
A third source for this approach of Rashi is the Tashbatz (res 2, 53) who wrote: “The rule that it is a mitzvah to fulfill the desires of the deceased applies exclusively to the money of the deceased and it is part and parcel of the laws of inheritance.”
This is also explicitly stated by the Sema (253, 70) as the explanation for the ruling of the SA (CM 253, 70) that if a deceased person gave away many of his assets on his deathbed but left a portion over for his heirs, the burial costs are borne by his heirs. He writes, “They stand in place of their father and the assets that they inherit bear the name of their father and they are burying him with his own money.”
Thus, we have seen that the assets that are needed to bury a deceased are not included in the assets of the deceased that are subject to the ordinary laws of inheritance. Therefore, your brother’s claims are totally without merit. Neither he nor you inherited either your father’s burial place or the money needed to bury your father in his burial place. Rather, these are excised from the estate, and only the remaining assets are divided up according to the Torah’s laws of inheritance.
It is necessary to explain the exact mechanics of this approach since, in general, only live people own anything and whatever assets the deceased owned, since he no longer owns them, are subject to the Torah’s laws of inheritance.
The terminology of the Tashbatz and Sema indicate that this exclusion is itself part and parcel of the laws of inheritance. The heirs take full possession of the remainder of the estate and are free to do with it what they want. However the assets needed for burial are set aside for the needs of the deceased, and therefore, the heirs have no jurisdiction over this portion of the deceased’s estate.
The Imros Avrohom (Yesh Nochalim chapter 1) explains how this rule fits into the rules of inheritance. He postulates that the Jewish concept of inheritance is not that the deceased’s assets change hands from the deceased to his heirs, but that the heirs continue and carry on the ownership of the deceased.
He brings many proofs for this characterization of the Torah concept of inheritance. One proof is the differentiation the Gemoro (BK 111B) makes concerning stolen possessions that the owner gave up hope of recovering (ye’ush). The Gemoro rules that if, after the owner gave up hope, the thief transferred (sold, gave a present) the stolen goods to someone else, the new owner need not return the stolen goods to the victim since they are no longer owned by him or by the thief but have new owners (ye’ush and shinui reshus). However, if the thief died after the owner gave up hope and the stolen goods were passed to the heirs, the victim can force the heirs to return the stolen goods since it is not considered that the goods changed hands by being given over to the heirs. The ruling that we don’t view inherited stolen goods as having changed hands is well-understood if heirs just continue the deceased’s ownership.
Another proof is a ruling of Rabbeinu Tam (Tosafos Gittin 13A) that the entire concept that there is a mitzvah to fulfill the deceased’s wishes only applies to assets that were inherited but not in the case of a ger who passed away without leaving any heirs, where anyone may seize his assets. Rabbeinu Tam bases his ruling on the consideration that when assets are inherited the deceased’s control is not relinquished whereas in the case of a ger they are, since those who take possession do not do so because they are his heirs.
He explains (in the name of Rav Povarsky) that even though a dead person cannot own property, the Torah (in its laws of inheritance) granted him a degree of control over the assets that he bequeaths to his heirs. Therefore, any assets that he set aside for his own needs must be used to fulfill those needs and his directives, if any, must be followed by his heirs.
In conclusion: Your brother is totally incorrect with both of his claims since neither of you has control over the assets that your father left that are needed in order to bury your father in the manner he desired. Rather both of you are required to use these assets in the manner that your father commanded.
In the sequel we will Be’ezras Hashem study other approaches to understand how this rule fits into Jewish law’s concept of ownership and study other interesting questions that are related to your question.
