The basis for this ruling is a discussion in the Talmud whether a person may demand not to be interred. Jewish law rules that we do not respect this request because the commandment to be buried relates to one’s inherent dignity, rooted in being created in God’s image, that cannot be simply waived. In contrast, mourning rituals done for the deceased’s benefit or honor may be waived in one’s lifetime. Requests for no eulogies or modest writings on headstones must be respected since they are intended to praise the deceased, who may choose to give up on these honors.
The Talmud, however, did not address questions relating to avelut itself, such as shiva and shloshim, the seven- and 30-day periods of mourning observed for one’s immediate relatives. In the 16th century, rabbis Yaakov Reischer and David Oppenheim ruled that we respect the wishes for a person who request that his or her loved ones not observe avelut. The case, perhaps not surprisingly, dealt with someone who was on their death bed in the period immediately before their child’s wedding date and wished that the ceremony should still take place. Rabbis Reischer and Oppenheim asserted that mourning rituals are done for the sake of the honor of the deceased and therefore their wishes should be respected.
This ruling, however, was in opposition to the position of Rabbi Moshe Isserles, who followed Rabbi Yaakov Weil (15th century, Germany) in asserting that one could not waive these periods of avelut. This was either because they were concerned that mourning is ultimately for the sake of the mourners, or that these periods are a bona-fide obligation that, whatever their rationale, may not be waived. The generally accepted position affirms that these initial periods of avelut must be observed.
This disagreement was only regarding the shiva and shloshim periods, which are standard in all cases of mourning. What about the extended 12-month period, which exclusively marks the passing of one’s mother or father? In this circumstance, Rabbi Weil asserts that parents may waive this requirement since the extended period of mourning is only done out of a sense of honor for them (kibbud av va’em). This position is approved by Rabbi Yoel Sirkes and subsequently by all other decisors, such as rabbis Yehiel Epstein, Chaim Medini, Avraham Danzig, Ovadia Yosef, and many others.
To appreciate the widespread acceptance of the parental ability to waive the 12-month avelut period, it pays to compare it with the various rabbinic positions taken to a similar question. Can a parent request a child not to recite kaddish for them? The mourner’s kaddish emerged in the 12th century as a form of intercessory prayer that would help atone for the sins of the deceased and reduce their suffering in the afterlife. One might assert the deceased should be able to waive recitation of kaddish since this is for their benefit, like a eulogy. While this conclusion was accepted by a few decisors, including Rabbi Yekutiel Greenwald and Rabbi Feivel Cohen, it was rejected by a significant majority of decisors, for a variety of reasons.
These include: 1) concerns that not reciting kaddish might create the mistaken impression that the children was of illegitimate origins or not actually his seed, thereby impugning on his reputation; 2) the parent’s potential motivation to want to avoid “imposing” on the child to regularly attend services; since a child must try to attend synagogue anyway, this is not a sufficient justification; 3) most fundamentally, in light of the great benefit the deceased receives from the kaddish recitation on his behalf, the deceased would certainly regret this decision. Given its spiritual benefits, a person simply does not have the ability to waive such lofty assistance, and therefore children should ignore this request and recite kaddish. As such, one does not see the option of waiving kaddish in contemporary handbooks of halachic literature. Decisors do not respect the potential motivation nor do they think that it is in the best interests of the deceased. This is in contrast with waiving the 12-month avelut requirement, which was widely accepted.
Interestingly, two prominent legal decisors, rabbis Eliezer Waldenberg and Yosef Elyashiv, innovatively asserted that even if the deceased did not expressly waive the mourning requirement, we can assume that he would in cases when it is clear to the mourners that their parents would have clearly desired for their children to participate in a family celebration, such as the wedding of a grandchild. Not all decisors, including Rabbi Yaakov Kamenetsky, agree with this suggestion of simply assuming this is the case.
Fascinatingly, one lesser-known scholar, Rabbi Gershon Ephraim Marber (Warsaw/Antwerp, 1872–1941) suggested that parents should explicitly waive the extended 12-month period so that children will not fail in the difficult obligations imposed in this period, especially when it comes to family celebrations.
Is this a good idea? In the most recent issue of the journal Hakirah, I expound at great length on the wisdom of this suggestion to encourage waiving the avelut requirement. It should be clear, however, that the prerogative of a parent to choose, on their own initiative, to waive avelut for their children after the 30-day mourning period remains entirely acceptable. ■
The writer is co-dean of the Tikvah Online Academy and a post-doctoral fellow at Bar-Ilan University Law School. His book, A Guide to the Complex: Contemporary Halakhic Debates, received a National Jewish Book Award.