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Shabbat Parashat Ki Tisa| 5766

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Question: My father-in-law died recently and was buried in America. My mother-in-law plans to move to Israel, where her children live. She has indicated clearly her desire to be buried next to her husband in chutz la’aretz. Will we be required or allowed to execute her will, given that it violates the halacha that she should be buried in Israel? Realize also that we will have no place to sit shiva in America and will not be able to visit her grave on yahrtzeits.
 
Answer: Firstly, we hope that your question will remain theoretical for many years. The matters of shiva and yahrtzeit, while not insignificant, are relatively minor issues that can be worked out when the time comes. Let us concentrate not on your question as asked but on the assumption upon which it hinges. May one ask to be taken out of Israel for burial?
 According to most opinions, it is a mitzva to live in Eretz Yisrael, and it is wonderful that your family, soon to include your mother-in-law, is doing so. It is not a mitzva to be buried in Israel but an opportunity for the deceased. The gemara (Ketubot 111a) says that being buried in Eretz Yisrael brings atonement to the deceased and eases the process of the resurrection of the dead. Therefore, many fine Jews, starting with Yaakov Avinu,have asked to be buried here. There has been debate whether those who lived abroad deserve to be buried in Israel (see Talmud Yerushalmi, Kilayim 9:3). Some of the positive effect is anyway lost if one is brought to Israel posthumously (gemara, ibid.). However, the consensus for several centuries is that it is good for one to be buried here even if he died abroad (see Shulchan Aruch, Yoreh Deah 363:1,2; Maharashdam, YD 203 and several recent poskim). For example, the Shulchan Aruch allows transporting or even exhuming the body from a proper cemetery in chutz la’aretz to bring it to Israel.If one will die in Israel, it is certainly a tremendous benefit to be buried here. However, we are talking about benefit, not a mitzva for one to arrange for himself.
 One must realize that there are other factors that are religiously recognized. For example, one can be transported or exhumed in order to be buried in a cemetery with a family plot. According to most poskim (see Taz, YD 363:2; Yabia Omer VII, YD 39) this applies to a variety of family members, certainly including one’s spouse. It seems that of the two factors, Eretz Yisrael vs. family, most prefer that of Eretz Yisrael, all the more so, if the deceased died in Israel (see Har Tzvi, YD 274; Yabia Omer VI, YD 31). However, poskim allow for one to decide for himself.
 There was a fascinating machloket between Rav Moshe Feinstein and Rav Ovadya Yosef on whether it was proper to exhume and bring Sir Moses Montifore to be buried in Jerusalem, which he helped sustain in his lifetime. The former (Igrot Moshe, YD III, 153) said that since Montifore knew of the opportunity to be buried in Israel and opted not to, he should be left alone. The latter (Yabia Omer VII, 39) showed why it was in the deceased’s best interest to be brought to Israel and claimed that he would have wanted it had he understood the actual circumstances. However, Rav Yosef (ibid.:38) ruled in the case of one who was buried in Israel but had left explicit instructions to be buried among family in chutz la’aretz that her will should be followed, and she should be exhumed. (In a similar case but there were not explicit instructions, he ruled that she must remained buried in Israel- ibid, VI, YD 31.). He did not feel that the decision to remove the deceased abroad is qualitatively different from the decision not to bring the body for burial in Israel.
 The case for bringing the deceased to rest abroad is even stronger if she already owns a plot there and if the request is formalized in a verifiable document. Thus, while you might argue that your mother-in-law’s decision is spiritually unwise, it is certainly legitimate and should be honored (hopefully not any time soon).
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