Question: When does aveilus start for mourners where the deceased is taken from the United States and buried in Israel?

Short Answer: While this is a very fact-intensive inquiry, as a general rule, mourners who do not accompany the deceased start aveilus immediately after they turn backs from escorting the deceased (i.e., the deceased is out of their “possession”). According to Rav Moshe Feinstein zt”l, those who accompany the deceased to Israel only begin aveilus from the time of burial, even when he is the “gadol ha’bayis.” However, many other poskim adopt the opinion of the Shach, that if the one who accompanies the deceased to Israel plans to return to the United States during shiv’ah, he also starts aveilus immediately.

 

Explanation:

I. The Burial

The Gemara (Moed Katan 27a) discusses the precise time that the mourner “turns over the beds” (i.e., a sign of mourning). This act signifies that the aveilus period has begun, and the aninus period has ended. According to Rabbi Eliezer, this period begins as soon as the deceased is removed from the house, while according to Rabbi Yehoshua, this period begins only after “s’simas ha’golel,” after the deceased is fully buried. The Shulchan Aruch (Yoreh Dei’ah 375:1) paskens like Rabbi Yehoshua, that aveilus begins after the deceased is fully buried.

However, this rule only applies where the mourners are present at the burial. Where the mourners are not present at the burial, such as when they remain in America and the deceased is flown to Israel to be buried, the precise time that aveilus begins is more complicated.

II. Those Who Stay Back

The Gemara (Moed Katan 22a) recounts that Rava told the people of Mechuza (in Bavel) that mourners who do not escort the deceased to be buried in Israel must begin aveilus as soon as they stop escorting the deceased. Rashi expounds that they begin aveilus immediately, even if the burial will not take place for a few days (and the other mourners who accompany the deceased will not begin until that point).

The Tur (Yoreh Dei’ah 375:2) cites a machlokes between the Ramban/Rambam/Rosh and the B’HaG whether this rule about immediately starting aveilus applies even when the burial takes place in that same city. The Ramban/Rambam/Rosh hold that where the burial takes place in the same city as the mourner is located, but just that he cannot attend the burial for some reason, the aveilus for him begins only after the burial. The Bach explains that since the mourner is close to the place of burial, he will know when the burial takes place and thus waits until that point to start aveilus. The aveilus only begins immediately where the burial is in a different city and the mourner will not know the time of burial. The B’HaG, on the other hand, says that there is no difference. Any mourner who is not going to be present at the burial starts aveilus immediately after the deceased is out of his “possession,” because from that point on, the mourner is “misya’eish” (i.e., not involved) with the burial.

The Shulchan Aruch (Yoreh Dei’ah 375:2) follows the opinion of the Ramban/Rambam/Rosh and rules that aveilus only begins immediately for a mourner not attending the burial where the burial will be in a different city.

III. When the Time of Burial Is Known

But what is the rule nowadays, where the precise time of burial is known to those mourners who remain in America? Do they start aveilus immediately, even though the deceased is only on its way to be buried in Israel and they will watch or participate in the funeral over Zoom or some other livestream a few hours later?

The Bach (ibid) noted that the reason why the Ramban/Rambam/Rosh held that aveilus starts immediately for the mourner who is not attending the out-of-town burial was because the mourner “did not know” when the burial would take place. Accordingly, nowadays, where the mourner certainly knows the exact moment of the burial (and is likely watching or listening to the burial), the aveilus would not start until after the burial. Indeed, this is the ruling of many Acharonim, including the D’var Moshe, Yabia Omer, and Rav Sroyah Deblitzky, as cited by the Nit’ei Gavriel (Kovetz Beis Aharon V’Yisrael, Vol. 106, p. 72).

The Aruch HaShulchan (Yoreh Dei’ah 375:8), however, disagrees. If the key distinction is whether the mourner “knows” the time of burial, then the Shulchan Aruch should have highlighted this distinction instead of where the burial takes place. Thus, the Aruch HaShulchan appears to understand that the key issue is whether the mourner has been “misya’eish” – i.e., not involved or not worrying about – the burial. This occurs regardless of whether the mourner knows the time of burial. As long as the mourner does not travel to the out-of-town burial, he starts aveilus immediately after the deceased leaves to be buried. The Igros Moshe (Yoreh Dei’ah 1:253, 2:170) agrees with the Aruch HaShulchan, and this is the minhag today. See Nit’ei Gavriel (ibid).

[As an aside, there is a separate, but related, issue where a mourner learns of a death in a different country and the deceased will be buried in that different country. Does the same reasoning of the Aruch HaShulchan apply and the mourner begins aveilus immediately, or is this case different because here the mourner was never truly “misya’eish” (because he was never involved in the burial of the deceased to begin with)? This is a machlokes between the N’tziv, who ruled that the aveilus only starts after burial, and the Maharsham, who ruled that the aveilus starts immediately. See T’shuvos V’Hanhagos (1:724). Interestingly, Rav Refael Shapiro, the son-in-law of the N’tziv (and father-in-law of Rav Chaim Soloveitchik) personally told his wife to follow the ruling of the Maharsham and start aveilus immediately when the N’tziv (her father) died in a different country and she was unable to attend the burial. See V’Darashta V’Chakarta (3:54).]

IV. The Gadol HaBayis Exception

Although it appears clear that the minhag is for a mourner who remains behind to begin aveilus immediately, there is an important exception.

The very same Gemara (Moed Katan, ibid) and Shulchan Aruch (ibid) note that if the “gadol ha’bayis” accompanies the deceased to the burial in the different country, then even mourners who remain behind only start aveilus after burial. The Shach (3), based on the Gemara, explains that this exception only applies where the burial will take place within three days of the departure, and where the gadol ha’bayis remains in the different country for the entire week of shiv’ah.

According to the Shach, if the gadol ha’bayis travels with the deceased to Israel for the burial and remains in Israel for the entire week of shiv’ah, the entire family only begins shiv’ah from the time of burial.

[Another tangential issue arises where the gadol ha’bayis remains home and does not accompany the deceased to the different country for burial. Do the mourners who accompany the deceased begin aveilus immediately like the gadol ha’bayis? The Shach (2) cites a machlokes on this issue and concludes that the mourners who accompany the deceased only begin aveilus after burial].

However, what about if the gadol ha’bayis returns to America during shiv’ah? Based on the Shach, all the mourners – including the gadol ha’bayis – start aveilus immediately. This Shach is followed by many poskim, including the Nit’ei Gavriel (1:134) and the Nishmas Yisrael (p. 165). Mourning in Halachah (ArtScroll, p. 152) rules according to this Shach, as well.

The Igros Moshe (Yoreh Dei’ah 4:60:5), however, disagrees. He rules that the mourners who remained in America start aveilus immediately, but the gadol ha’bayis starts aveilus from burial.

Interestingly, the Igros Moshe also partially defines “gadol ha’bayis.” According to the Shulchan Aruch (ibid), the “gadol mishpachah” (i.e., gadol ha’bayis) is the person whom “the house relies upon” and “whom everyone in the house follows.” It can be a “brother” or a “young child” (although some disagree and say the “gadol ha’bayis” must be at least 13). According to the Igros Moshe, where a wife of the deceased remains in America and her sons accompany her deceased husband (i.e., their father) to Israel for burial, they are the gadol ha’bayis and they begin aveilus from burial. Moreover, there is no gadol ha’bayis where there are multiple sons of the deceased, all of whom are self-supporting. Thus, those who accompany the deceased to Israel start from the time of burial and those who remain behind start immediately. [The full scope of gadol ha’bayis is outside scope of this article.]

 Next Week’s Topic: May an aveil who is sitting shiv’ah in the house of the deceased (or of another aveil) return to his own home at night to sleep? May he attend shul if there is no minyan at the beis aveil?


Rabbi Ephraim Glatt, Esq. is Assistant to the Rabbi at the Young Israel of Kew Gardens Hills and a practicing litigation attorney. Questions? Comments? Email: This email address is being protected from spambots. You need JavaScript enabled to view it..

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