A Husband's Obligation of "Kevura"
Translated by David Silverberg
The Obligation of the Inheritor
Chazal cast upon a husband the obligation of kevura – to tend to his wife's burial needs. In exchange, the husband inherits the wife's possessions listed in the ketuba. The berayta states: "They instituted [a husband's obligation with regard to] mezonot [her sustenance] in exchange for [his rights to] her earnings, and [his obligation with respect to] her burial in exchange for [his inheritance of] her ketuba." Rashi explains: "In exchange for her ketuba – in exchange for the dowry that she brought into [the marriage] for him. It is written in the ketuba, and he inherits [it]." At first glance, we might understand this enactment on the basis of the Gemara in Eruvin (17b), which defines a "meit mitzva" (a deceased person whose burial constitutes a mitzva) as someone who does not have "koverim" (people to bury him), which Rashi there interprets to mean inheritors. This indicates that the basic obligation of burial is cast upon the deceased's inheritors. Accordingly, we may explain that Chazal named the husband the wife's inheritor, and, as a natural consequence, he bears the obligation to bury her as do all inheritors. Similarly, the Gemara later (80a) inquired as to who bears the obligation to bury a "shomeret yabam" (childless widow waiting for her brother-in-law to either marry her or perform "chalitza"). The Gemara considers two possibilities: "The husband's inheritors bury her, for they inherit the ketuba, or, perhaps, the father's inheritors bury her, for they inherit the assets that go into [the marriage] and leave [the marriage – 'nikhsei melug']?" Rashi explains, "We pose this question because she has two [sets of] inheritors."
But if this is correct, then we must explain the hava amina (initial hypothesis) in our sugya requiring an arus (groom, after betrothal but before marriage) to bury his arusa. On what basis would the Gemara have considered applying the kevura obligation to an arus, given the fact that an arus does not inherit his arusa's possessions upon her death? Rashi took note of this difficulty, in his remarks on the Gemara's comment, "What's the reason… for I cannot apply [the provision written in the ketuba], 'When you marry another you will receive what is written for you'." Rashi writes:
"What is the reason – for that which we said that if she dies during his lifetime she cannot claim her ketuba [obligations, meaning, he does not have to bury her]? Let her be buried because of the one or two hundred [zuz] that he inherits! 'For I cannot apply… ' this is what they would write in the ketuba document. Therefore, so long as he has not died and she has not been divorced, he has not obligated himself to her and he does not inherit from her anything."
We can infer from his comments that Rashi understood that in the hava amina, the Gemara did not think that an arus inherits all his fiancée's assets, but rather that he inherits the value of the basic ketuba obligation – the one or two hundred zuz that now he does not have to pay. According to the Gemara's conclusion, the arus is exempt from kevura because he inherits nothing, given the fact that the conditions for the husband's requirement to pay the ketuba have not been met.
The Tanna'im debate the issue of whether or not the husband's inheritance of his wife's assets originates from the Torah or from rabbinic enactment. Later in the masekhet, the mishna (83a) states:
"If he wrote to her: I will have no claim with regard to your property, their fruits, or the fruits of their fruits during your lifetime or after your death – he does not eat fruits [from her property] during her lifetime and if she dies [during his lifetime] he does not inherit her. Rabban Shimon Ben Gamliel says, if she dies, he inherits her, because he makes a condition on that which is written in the Torah, and anyone who makes a condition on that which is written in the Torah – his condition is void."
The Gemara comments:
"Rav said – halakha follows [the position of] Rabban Shimon Ben Gamliel, but not because of his reason. What does it mean, 'Halakha follows Rabban Shimon Ben Gamliel, but not because of his reason'… Halakha follows Rabban Shimon Gamliel, who said that if she dies, he inherits her. But not because of his reason, for whereas Rabban Shimon Ben Gamliel held that a husband's inheritance [of his wife's possessions] originates from the Torah, and anyone who makes a condition on that which is written in the Torah – his condition is void, Rav held that a husband's inheritance originates from the rabbis, and the rabbis granted their legislation a status equal to Torah [law]."
Earlier, we saw that the burial obligation always falls upon the inheritor. Seemingly, then, we must conclude that the berayta which describes the husband's kevura obligation as an enactment legislated in exchange for his inheritance rights, follows the view that a husband's inheritance rights are de-rabbanan. After all, according to the view that a husband inherits his wife by force of Torah law, he must naturally bury her by force of Torah law, as well. The Ra'a asks a similar question in our sugya: "Why do we need an enactment? This is obvious – for this is the case regarding all inheritors, that they are obligated with respect to the burial of the morish [the deceased, whose property they inherit]." The Ra'a answers: "This [enactment] extends further [then the Torah obligation], for even when there is no inheritance at all he is obligated in her burial, even though there are other relatives. For this the enactment is necessary, and this [interpretation] is correct." In other words, the standard kevura obligation cast upon every inheritor, including the husband, applies only when the inheritor receives an actual inheritance. Chazal added to this obligation that a husband must bury his wife even if she left nothing for him to inherit.
We might explain, that strictly speaking, an inheritor bears no personal obligation to bury the deceased whose inheritance he receives. Rather, there exists a lien on the deceased's property with respect to his burial. The Gemara (48a) establishes, "One who says, 'If he [referring to himself] dies, do not bury him from his own property' – we do not listen to him. He does not have the right to enrich his children while casting himself [i.e. his burial needs] on the community." Regarding one's wife, however, Chazal enacted a personal obligation cast upon the shoulders of her inheritor – the husband. The Rosh, however (teshuvot, 15:3), understood differently, that there is no lien on the deceased's property. He therefore ruled that one who takes possession of the property of a deceased gentile (who has no inheritors) has no obligation to bury him. In his view, acquiring the inheritance bequeathed by the deceased obligates the inheritor to bury the deceased. In the case of a convert, however, the possessor takes ownership over the property from hefker (ownerless property), rather than through the convert's inheriting to him his possessions. In any event, the Rosh seems to accept the Ra'a's premise that only an inheritor who actually receives an inheritance has the obligation to bury. Thus, if the husband's obligation of kevura applies even when the wife leaves nothing for him to inherit, then necessarily his obligation of kevura extends beyond the general halakha requiring an inheritor the bury the deceased. (However, the Shita Mekubetzet (47b) cites a view that a husband need not bury his wife if he did not actually receive an inheritance.)
The Obligation of the Relatives
There is room, however, to question our initial premise that the burial obligation in general is cast upon the inheritors. For one thing, the Torah obligates a kohen to become tamei for the burial of his relatives, an obligation which appears to stem from his obligation to tend to their burial needs. And this obligation to become tamei applies to all seven immediate relatives (spouse, parent, sibling, child) – even with regard to those whom one does not inherit, such as a brother, who does not inherit if the deceased has children. This would seem to indicate that the burial obligation is cast upon relatives, and not necessarily inheritors. Additionally, all relatives of a deceased person have the status of "onein" which exempts them from mitzvot asei until the burial, so as to allow them to tend to the burial needs. Indeed, Tosefot in Masekhet Nazir (43b) define the term "meit mitzva" differently than Rashi: rather than defining it as "someone without inheritors," they write, "someone without relatives." This would imply that the primary obligation of kevura is upon the relatives. The Ra'avan (33) makes this point explicitly, addressing the question of whether one has an obligation to bury his child. Responding in the affirmative, the Ra'avan cites proof to this obligation from the fact that the Torah obligated kohanim to become tamei to their immediate relatives – including children. "If they are not obligated [to bury]," the Ra'avan writes, "then why do they become tamei?"
Rashi, however, likely dismissed this proof because he distinguished between the kevura obligation cast upon relatives, which we derive from the mitzva of tum'at kohanim, and the kevura obligation of inheritors. The inheritors must cover the burial costs from the deceased's estate, but their status as inheritors does not require them to involve themselves personally in the burial. Relatives, however, are obligated to actively engage in the burial for the deceased's honor, and therefore, a kohen must become tamei by getting involved in the kevura. A kohen does not, however, bear any financial obligation towards the financing of the funeral. It would thus appear that according to the Ra'avan, who fuses the two, the financial obligation is rooted in the obligation of personal involvement in the burial for the deceased's honor. Essentially, then, all seven immediate relatives must finance the burial, but the closest relative bears primary responsibility in this regard, and the moment the closest relative covers the funeral costs, the others are exempt from this aspect of the obligation.
In any event, we see that according to the Ra'avan, it is the relatives, rather than the inheritors, who bear the obligation of burying the deceased. In light of this position, he questioned the necessity for a separate takana requiring a husband to bury his wife. Given a kohen's obligation to become tamei for his wife's funeral, the Torah clearly obligates a husband to bury his wife. The Ra'avan explains that in truth, the Torah indeed obligates a husband with respect to his wife's burial. In the Ra'avan's view, the need for an independent, rabbinic enactment of kevura stems from the fact that the Torah does not explicitly mention the obligation to bury one's wife as it does concerning other relatives. The Torah writes (Vayikra 21:2-3), "[A kohen shall not become tamei] except for the relative (she'eiro) closest to him, his mother, his father, his son, his daughter and his brother, and his virgin sister who is close to him and has never married a man – to her he may become tamei." The Torah mentions explicitly by name all relatives with the exception of one's wife, whom Chazal extract from the word "she'eiro" ("his relative"). It stands to reason that according to the Ra'avan, the Gemara's conclusion, that an arus bears no obligation to bury his arusa, stems from the fact that an arusa does not qualify for inclusion under the term "she'eir," and the relationship of erusin does not suffice to require kevura by virtue of family relation (though the straightforward reading of the sugya does not support this interpretation.).
The Case of a Widow
The first mishna in the eleventh perek (95b) discusses the application of the ketuba obligations in the case of a widow: "A widow is fed from the property of the orphans; her earnings belong to her, and they are not obligated with regard to her burial. Her inheritors, who inherit her ketuba, are obligated with regard to her burial." This halakha is easily understood according to both approaches we have seen. If inheritance generates the obligation of kevura, then we obviously cannot apply this obligation to the husband's inheritors, but rather to the wife's. Alternatively, if family relationship gives rise to the kevura obligation, then the relationship of "she'eir" – marriage – applies only during the husband's lifetime, not after his death.
The Rambam, however, rules (Hilkhot Ishut 18:6): "If the widow dies, the husband's inheritors are obligated in her burial; if she took the widow's oath and then died, her inheritors inherit her ketuba and they, rather than the husband's inheritors, are obligated in her burial." The straightforward reading of this halakha indicates that if the widow had not sworn before her death that she hadn't received her ketuba payment, the husband's inheritors bear the obligation of her burial, since her inheritors have no legal proof allowing for the collection of her ketuba from the husband's inheritors. Therefore, the woman's inheritance, which obligates her burial, remains in the possession of the husband's inheritors. The Ra'avad objects to the Rambam's ruling and writes:
"We see here weak reasoning; because she did not take an oath he calls the husband's inheritors 'the inheritors of her ketuba'? Do they not claim that she was already paid and bequeathed [her estate to her inheritors]! Rather, undoubtedly those who inherit her dowry and her nikhsei melug [property brought into the marriage] bury her, even though they do not inherit anything."
In other words, if she hadn't taken the oath before she died, then her inheritors cannot collect her ketuba because of the possibility that she had already done so during her lifetime. How, then, can we cast the kevura obligation upon the husband's inheritors based on the assumption that they had inherited her ketuba?
We might add another difficulty in this ruling of the Rambam, regarding his sequence of presentation. This entire passage seems out of order. Seemingly, the primary halakha is that the widow's inheritors bear the obligation of her burial. Only in a case where they cannot receive her ketuba do the husband's inheritors, who retain the ketuba, bear this obligation. But the Rambam reversed the sequence: he brings first the halakha concerning the extraordinary case, and only thereafter presents the primary halakha. It seems clear to me, therefore, that we must understand the Rambam differently.
We might suggest that according to the Rambam, the basic halakha requires the husband's inheritors to bury the widow if she had not taken the oath during her lifetime. To explain why this is so, let us first establish that in the Rambam's view, the kevura obligation, which constitutes one of the conditions of the ketuba, is not merely an application of the standard kevura obligation – regardless of whether the standard obligation depends on inheritance or family relation. The husband's responsibility to tend to his wife's burial is included among the marriage obligations cast upon a husband. Accordingly, the question arises as to the halakhic nature of the period of widowhood after the husband's death. Do we consider this period a sort of continuation of the marriage, such that the husband's inheritors must fulfill the same marriage obligations as the husband did during his lifetime? Or, does the husband's death mark the termination of the marital obligations, and the inheritors' responsibilities are purely financial debts owed by the husband's estate?
The Rambam writes (ibid., halakha 4), "Leftover food of the widow and leftover clothing belong to the inheritors." The Ra'avad again expresses his objection:
"I, too, held such a view until I saw in the Yerushalmi… Rav Yehuda [said] in the name Rav, and Rabbi Avahu in the name of Rabbi Yochanan: her metzia [lost item that the widow finds] belongs to her; if she left over food – a married woman, whose metzia belongs to him [the husband], her leftover food belongs to him; but a widow – whose metzia belongs to her, if she left over food it belongs to her."
This debate quite possibly hinges on the nature of the husband's inheritors' obligation to feed the widow. If we deal with a purely monetary obligation, a financial debt, then it would seem that the entire amount belongs to the widow. For instance, if weekly mezonot cost a set amount per week, that entire amount is included in the debt. If she does not actually eat the entire value, the remaining funds should be no less than a metzia, which, as the Ra'avad correctly notes, she keeps. She should therefore keep the remaining money, as well. If, however, we view this obligation as a continuation of the husband's marital responsibility to feed his wife, then there is no set amount which is owed, since the husband is obliged to feed his wife not to pay for her food. Therefore, any leftover funds were never included in the inheritors' obligation towards the widow. We would therefore accept the Rambam's ruling, that the inheritors, rather than the widow, keep the leftover money.
The Rambam also rules (ibid., halakha 14), "If he left many wives, then even though he married them one after the other, they are fed equally, as there are no rules of preference when it comes to metaltelin [mobile property, as opposed to real estate]." The Ra'avad writes:
"[This applies] even if they were fed from karka [real property], for the mezonot obligation takes effect only after his death, and so the moment of obligation arrives for all of them simultaneously. He is therefore like one who borrows and then borrows [from another] and then purchases [property] – that they are all equal with regard to [the ability to collect from] it."
The Ra'avad argues that we can afford preference only when one debt preceded the other. Regarding the widows' mezonot, however, the obligation takes effect for all of them simultaneously – at the moment of the husband's death. Therefore, the Ra'avad here is consistent with his position as shown above, that feeding the widow constitutes a financial obligation upon the inheritors, rather than a continuation of the husband's personal obligation. He believes that with the husband's death, a new obligation sets in, placing a financial responsibility upon the inheritors to support the widow. The Rambam, however, as we saw, views the inheritors' obligation as a continuation of the husband's personal, marital responsibility towards his wife. Naturally, then, the issue of preference indeed arises in a situation of many wives whom the deceased had married one after the other. The Rambam and Ra'avad thus argue as to whether widowhood continues the marital obligations of the husband or constitutes a new obligation cast upon his inheritors.
Accordingly, we can easily claim that fundamentally, according to the Rambam, the husband's inheritors are obligated to bury the widow as a continuation of his marital obligations. This applies, however, only when the widow had never taken an oath that she did not receive her ketuba payment. In such a case, the ketuba, the marriage document, remains in force and requires the continuation of the marriage. But once the woman takes the oath, she transforms the ketuba from a marriage document into a financial contract with which she collects money owed to her. The widow's relationship has thus terminated, and the marital obligations are not transferred onto the husband's inheritors. Therefore, in the absence of a kevura obligation stemming from the marriage cast on the husband's inheritors, her inheritors bear the obligation to bury her.