20 Nov Burial Plot Complications
I. BURIAL CONFLICT
A frequent question arises when a spouse remarries after a death. After 120 years, should the woman be buried next to her first husband or second husband (or third)? The same with a man who remarries after his wife’s death—next to whom is he buried? Interestingly, this is an area where halachah and hashkafah, Jewish law and theology, mix.
Sometimes these questions can be answered without conflict. Burial location serves both the deceased and the living, the former in fulfilling a wish of burial near loved ones and the latter in allowing for meaningful visitation. However, what happens if a man has children with both his first and second wives, and each set of children want their father buried next to their mother? There is a simple solution to this problem. The Cheshinover Rebbe, Rav Shalom Yechezkel Shraga Rubin-Halberstam, published a responsum in the journal Ha-Pardes (33:11), with Rav Yosef Eliyahu Henkin’s written approval (recently published in Gevuros Eliyahu, Yoreh De’ah, no. 169), regarding a case in which the simple answer was not utilized.
II. FIRST OR SECOND WIFE?
On the one hand, the Gemara (Mo’ed Katan 21b) says that if a widower remarries quickly (within 30 days), you may not go to his house to comfort him over his loss because the new wife might take offense. This implies that we prioritize a second wife over a first. On the other hand, the minor tractate Semakhos (ch. 14) says (according to the version quoted in Tur, Yoreh De’ah 366) that if a father wants his married daughter buried near him but her husband wants her buried near him, she is buried near the husband’s plot (codified in Shulchan Arukh, Yoreh De’ah 366:3). In that case, the husband is alive and may remarry, but is still buried near his first wife. Based on the second source, Rav Yehudah Greenwald (Responsa Zikhron Yehudah, 2:161) rules that a man should be buried next to his first wife.
However, Rav Rubin-Halberstam disagrees with the application of this second source. If the first wife is buried with the husband’s family and next to his empty plot, any woman who later marries him knows and accepts this.
A theological approach to the issue considers the general resurrection near the time of Mashiach. A great debate surrounds this resurrection (see Sefer Ha-Ikarim 4:30). According to the Rambam, the righteous will be resurrected and live a long life, after which they will return to the spiritual afterlife. According to the Ramban, everyone will be resurrected for reward and punishment. Setting that debate aside, the question arises with whom a remarried widow or widower will be married in that resurrection period—the first spouse or second spouse? Perhaps we should bury a man next to the woman with whom he will be married when they are resurrected.
Rav Sa’adia Gaon (Emunos Ve-Dei’os 7:6) asks this difficult resurrection marriage question and answers that Moshe will be resurrected also. He will answer that question for us. Centuries later, Rav Yom Tov Muhlhausen (Sefer Nitzachon, Va’era, no. 53) attempted to answer the question. According to him, in resurrection, a man will be married to all the women he married throughout his life, since technically a man can marry more than one woman at a time (even though today we do not allow it). However, a woman may not marry more than one man at a time. Additionally, a remarriage prevents her from returning to her previous husband (Deut. 24:4). Therefore, concludes Rav Muhlhausen, in resurrection a woman will be married to her last husband.
Based on this argument, Rav Yosef Shaul Nathanson (Hagahos Divrei Shaul, Yoreh De’ah 366:3) rules that a woman should be buried next to her second husband. Effectively, the second marriage severs her relationship with her first husband. However, Rav Muhlhausen’s arguments are not conclusive. Death changes everything. While we know that a woman may not return to her original husband after remarriage, we have no indication whether that applies after death.
IV. TRUE LOVE
Rav Rubin-Halberstam adds two important considerations. First, we have to take into account children because burial is also for the living. If there are children from only one of the marriages, and those children want eventually to be buried next to their parents, they have a say in the burial circumstances. However, when children from both marriages make the same claim, neither side can take priority for this reason. Additionally, we must consider that, generally speaking, a person wants to be buried with his family. If there are parents or children buried nearby, that burial spot should be given preference.
However, absent all these considerations, we favor the first marriage. The Talmud (Yevamos 63b) says that a man only finds satisfaction with his first wife. The Or Ha-Chaim (Gen. 29:32) explains that Leah wanted to be Ya’akov’s preferred wife because a couple remains together even after death. Unless we know with certainty that a man or woman felt closer to a later spouse, we have to assume that the first spouse was that person’s true love.
Therefore, concludes Rav Rubin-Halberstam, it is best that everyone be buried within the same cemetery or even the same block. If we have to choose a spouse, barring other considerations a person should be buried next to the first spouse.
All of this guesswork and family fighting could be avoided with preparation. People should specify in writing where they want to be buried. This could save their children great anguish during a very difficult time. Preparation makes peace.