Fulfilling the Wishes of the Deceased

It is a mitzva to faithfully carry out the wishes of the deceased, a concept referred to as mitzva l’kayem divrei hamet.[1] Yaakov Avinu may have been the first person in the Torah to make a request that was to be carried out after his passing. He asked his son Yosef not to bury him in Egypt, but rather, in Chevron alongside the other Patriarchs and Matriarchs.[2] This request was later repeated on his deathbed in the presence of all his children and grandchildren, as well.[3] Yosef and the family complied with the request and buried Yaakov in Chevron.[4]

One of the reasons why it is a mitzva to fulfill the wishes of the deceased is that it allows those who die to do so with a clear conscience and a sense of fulfillment. When children comply with the last wishes of their parents they fulfill the mitzva of kibbud av va’em, as well.[5] According to most authorities, fulfilling the wishes of the deceased is a rabbinical mitzva,[6] while other authorities insist that it is a biblical one.[7] The mitzva includes complying with both verbal and written requests, such as those stated in a person’s will. This is true even if such requests appear only in a civil will, and not a halachic one.[8] It is interesting to note that there is a view that minors are not obligated to honor the requests of their deceased.[9] One should not hesitate to prepare a last will and testament even though one expects to live many more years.[10]

Nevertheless, one must not comply with the wishes of the deceased when they go against halacha. For example, there is a documented case of a woman who had requested that all her clothes be burned upon her passing. The surviving husband, however, wanted to donate the clothes to poor people. He decided to seek out rabbinic guidance in order to resolve this dilemma. The rabbi ruled that the clothes should be donated to the poor even if doing so contravened the wishes of the deceased.[11]

There are other types of last wishes that should be disregarded, as well. For example, if a parent requests that shiva or shloshim not be observed upon their passing, the request is to be ignored.[12] One may, however, comply with a parent’s request that one not observe certain mourning practices that are customary during the year of mourning should they so request.[13] Even in such circumstances, one must not openly dismiss, negate, or deviate from any of the traditional customs that are observed during the year of mourning, even if one has parental dispensation not to observe them.[14] One should also comply with a deceased’s request for no eulogies at his funeral[15] or that his tombstone contain, or not contain, certain text.[16]

Jews are required to be buried in the traditional shrouds. As such, one who requests to be buried in other garments is to be ignored.[17] So too, the requirement to recite kaddish upon the death of a parent cannot be waived even if one’s parent so requests it. This is because people only realize the importance of reciting kaddish for the dead…after they are dead. If parents would know in their lifetime how beneficial the recitation of kaddish would be to their soul, they would never request that it not be recited.[18] It goes without saying that a request to be cremated is to be ignored.[19]

It is permitted to bring a body to Eretz Yisrael for burial even if the deceased did not request it.[20] However, it should not be done if the deceased specifically requested not to do so.[21] It is even permitted to exhume a body – something generally forbidden - in order to reinter the body in Eretz Yisrael.[22] In fact, some authorities rule that it is permitted to exhume a body for reinternment in Eretz Yisrael even if it is contrary to the explicit wishes of the deceased.[23] In such a situation, however, the move must be initiated by the children of the deceased.[24] One should comply with the wishes of one who died in Eretz Yisrael but wishes to be buried in Chutz La’aretz, such as in a family plot or the like.[25]

[1] Gittin 13a-14b, 40a; CM 252:2; Shoel U'meishiv 1:1.

[2] Bereishit 47:30.

[3] Bereishit 49:29.

[4] Bereishit 50:12.

[5] Teshuvot Rabbi Akiva Eiger 68.

[6] Tosfot, Ketubot 86a.

[7] Maharsham 2:224.

[8] Teshuvot V'hanhagot 1:853. Note: We do not endorse exclusively civil wills. One must ensure that one’s will is fully consistent with halachic requirements and allowances.

[9] Ran, Gittin 5b.

[10] Sefer Chassidim 719.

[11] Shaarei Halacha (Slonim) 235.

[12] Rema, YD 344:10.

[13] Shach, YD 344:9.

[14] Mora Horim V’kvodam 12:19.

[15] YD 344:10; But see Pitchei Teshuva, YD 344:1; Aruch Hashulchan, YD 344:7; Minchat Elazar 2:63.

[16] Yabia Omer, YD 6:31.

[17] Yeriot Shlomo (Levitan) 49.

[18] Yabia Omer, YD 6:31.

[19] Yalkut Yosef 2:90. Regarding procedures for those who were cremated, see: Seridei Aish 2:123-124; Melamed L'hoil 2:113-114; Gesher Hachaim 1:16:9.

[20] Mahari Bei Rav 38.

[21] Kol Mevasser 1:76; Pitchei Teshuva, YD 363:2.

[22] YD 363:1.

[23] Pitchei Teshuva, YD 363:2.

[24] Igrot Moshe, YD 3:153.

[25] Taz, YD 363:2; Yabia Omer, YD 7:38.