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Chapter 32: The items of the deceased:^[1]

1. What to do with the belongings of the deceased:

The belongings of the deceased are permitted in benefit and belong to their rightful heirs, as explain next. All the belongings of the deceased may be benefited from with exception to items that were attached to the body of the deceased, or were buried with the deceased, as explained in Halacha 4. All clothing of the deceased may be worn with exception to his shoes, as explained in Halacha 2-3.

Throwing out his belongings:[2] It is Biblically[3] forbidden to be stringent and destroy the clothing, or belongings, of the deceased which still have a viable use, due to the prohibition of Baal Tashchis. [It is permitted, however, to make the items Hefker or give them away. In all cases that the item no longer has a viable use for oneself or others, then the prohibition of Bal Tashchis does not apply, and it may be destroyed. This applies even if the item can still serve a benefit to people, although people do not desire to trouble themselves to reap this benefit from the item, and it is hence rendered useless by the public.[4]]

Yerusha-Dividing the estate: The belongings of the deceased are subject to the inheritance laws brought in Jewish law. If a secular will was written by the deceased, and received Halachic corroboration of its validity, then the family is to divide the estate in accordance to the will, or be subject to whatever penalty the Halachic will places on the Halachic heirs. If a secular will was not written, then the estate must be divided in accordance to the laws of inheritance as prescribed in Jewish law. If a secular will was written, but was not corroborated according to Jewish law, then a Rav is to be contacted as to how the inheritance should be divided.

2. Wearing clothing of the deceased-what to do with his clothing:[5]

As stated above, there is no restriction against wearing the clothing of the deceased, with exception to his shoes, as explained next.

 

3. Wearing shoes of the deceased:[6]

One is not to wear the shoes of a deceased person due to fear of danger.[7] [This applies even to the shoes of a Tzaddik.[8] This applies likewise to the shoes of a murder victim.[9]] It is not to be given even to a poor person. It may however be sold to a gentile who is purchasing it for personal use, and one may then give the money to a pauper as charity. [If one does not plan to sell/give them to a gentile to wear, they are to be torn and discarded.[10] This law applies to any shoes worn by the deceased during his lifetime. However, some Poskim[11] rule the above only applies towards the shoes that were worn by the deceased at the time of his/her passing. Other Poskim[12] rule it applies to all shoes that were worn by the deceased throughout his illness, but not towards shoes that were worn prior. Other Poskim[13] rule that if one knows the deceased passed away from a non-contagious disease, it is permitted to be worn in all cases. Other Poskim[14] rule that the entire prohibition refers to shoes made from the leather of an animal which died on its own[15], and not to shoes of a dead person, of which there is no restriction to wear. According to all, shoes which were purchased but never worn by the deceased, are permitted in benefit.[16]

Rain boots:[17] One is not to wear the rain boots of the deceased just as one does not wear his shoes.

Socks: There is no source for restricting the wearing of the socks of the deceased.

4. Garments and ornaments attached to the body by death/burial:

A. Benefiting from burial garments:[18]

It is [Biblically[19]] forbidden to benefit from burial garments whether of a Jew or gentile.[20] This, however, only applies if the garments were designated for burial, and the body has been dressed in those garments. If the garments were designated, or even specially manufactured, for the burial of the deceased, but were not yet worn by him, it is permitted to use it for a different purpose. Likewise, if garments were worn by the deceased, but not originally designated for the burial, they are permitted in benefit. [Some Poskim[21], however, rule it is permitted to benefit from the burial garments of a gentile.]

B. Benefiting from external items that are attached to the body:[22]

All ornaments and apparatuses that are attached to the body of the deceased are forbidden in benefit just like the body itself. Thus, a wig or toupee [that was worn by the deceased at the time of death and is permanently left on the body[23]] is forbidden in benefit if it was tied [or braided[24]] to his hair.[25] If, however, the wig or toupee was not attached to the hair [at all, and was rather simply resting on it, or attached using hair clips[26]], then it is permitted in benefit. The same applies for all items that are not actually attached to the body [but are simply resting on it], that they are permitted in benefit. Therefore, it is permitted to remove the rings [and other jewelry] from the fingers of the deceased and make use of it [even if they are attached very tight to the body[27]].[28] [Likewise, the clothing that the person wore upon death is not forbidden in benefit.[29]] Furthermore, even if the item was attached to the body of the deceased, if he instructed prior to his death that the item be given to a son or daughter, or for any other purpose, then it is permitted in benefit.[30]

Q&A May a gold/silver tooth be removed from the deceased and benefited from?[31] No. A gold or silver tooth may not be removed from the mouth of the deceased, and it requires burial, as is the law regarding all matters that are attached to him. Dentures:[32] It is permitted to remove dentures from the deceased if they were not permanently placed in the mouth, and were hence removed and inserted by the person as needed. May a pacemaker and other medical items be removed from the deceased and reused?[33] It is permitted to remove implanted medical devices from the body, such as a pacemaker, for the sake of future use in other patients.[34]   May an artificial limb be removed from the deceased and reused?[35] This follows the same law as stated above regarding a pacemaker, if the limb was initially attached with the intent of its removal upon death.

C. Benefiting from items thrown onto the deceased:[36]

All items thrown onto the deceased during the burial, with intent to be buried with the deceased, are forbidden in benefit if they made contact with the bed of the deceased [which refers to the bed on which he is carried during the funeral procession[37]]. Thus, if the parents [or other relatives] throw items into the grave, the items are forbidden in benefit if they have touched the bed of the deceased. It is therefore a Mitzvah to try to save the items that are being thrown, prior to them touching the bed.[38] Whoever increases in the throwing of items on the dead, transgresses the prohibition of Bal Tashchis.[39]

D. Benefiting from items used on behalf of the deceased:[40]

It is permitted to benefit from the items used on behalf of the deceased during the Taharah, and funeral/burial, as they were never intended to be buried with the body, and hence do not become forbidden in benefit. Thus, the Taharah board on which the deceased rested during the Taharah process, remains permitted in benefit.

Is the casket permitted in benefit?[41] It is forbidden to benefit from the casket in which the body was buried in. If the body was removed from the casket, then the casket must be destroyed or burnt. [If, however, one planned to bury the body without the casket, as is done in Eretz Yisrael, then it remains permitted in benefit.

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[1] See Michaber 349; Nitei Gavriel Chapter 132

[2] Michaber 349:4; 350:1 as explained in Shach 350:2; Miseches Semachos 9; Admur Shemiras Guf Venefesh Baal Tashchis Halacha 14; Bava Kama 91b; Kiddushin 32a; Shabbos 129a; Makos 22a; Rambam Melachim 6:10; Rambam Sefer Hamitzvos L.S. 57

[3] Admur ibid; Bava Kama ibid; Gilyon Maharsha Y.D. 116; Rambam Sefer Hamitzvos ibid; Tosfos Bava Metzia 32b; See Shivim Temarim 53

The source: As the verse states [Devarim 20:19] “Do not destroy the tree …” (as if the Torah warned us against destroying [the items] of gentiles of which we are waging war against them then certainly must one beware from destroying items of a Jew, or even items that are disowned.) [Admur ibid]

Other opinions: Some Poskim rule the prohibition of Bal Tashchis is merely Rabbinical. [Tiferes Yisrael 8:40; Possible way of learning Rambam Melachim ibid, and so learns in Rambam: Veheishiv Moshe Y.D. 57; Divrei Hamagia in Mishneh Lemelech on Rambam ibid; Noda Beyehuda Tinyana Y.D. 10; See however Shivim Temarim ibid who questions their assertion based on the Rambam’s own ruling in Sefer Hamitzvos, from which it is clear that it carries a Biblical prohibition]

[4] Admur ibid Halacha 16 regarding a non-fruit bearing tree and the same applies “To all cases of the like, in destroying other items”

[5] Koreis Habris 51, brought in Nitei Gavriel 132 footnote 6

[6] Sefer Chassidim 454; Keser Shem Tov 683; Kaf Hachaim 116:141; Gesher Hachaim 8:1; Nitei Gavriel 132:5

[7] The reason: As the shoes contain the sweat of his feat. [Keser Shem Tov ibid] And thus possibly contain a contagious disease. [Igros Moshe 3:133] See Brachos 57b “If one has a dream that the deceased has come to take his objects, it is a good omen, with exception to his shoes” [Koreis Bris 137a]; See also Gittin 68b that Ashmadaiy told Beniyahu Ben Yehoyada “He is making shoes for seven years and he won’t even live for seven days” This implies that the shoes are not even worn by his son, as otherwise it would be inherited and Ashmadaiy would have no claim. [Makor Chesed on Sefer Chassidim ibid]

[8] Nitei Gavriel 132:6

[9] Nitei Gavriel 132:7

[10] Keser Shem Tov ibid; However, see Atzei Levanon 46 that doing so is Baal Tashchis

[11] Atzei Levanon 46 that even those who are stringent, should only be stringent in this case; See Makor Chesed on Sefer Chassidim ibid

[12] Mishmeres Shalom Samech 11

[13] Igros Moshe 3:133

[14] Atzei Levanon 46; Atzmos Yosef, brought in Mishmeres Shalom Samech 11; Beis David 31; Gesher Hachaim in name of Rav Pesach Frank; brought in Igros Moshe 3:133 [but negated]; See Makor Chesed on Sefer Chassidim ibid

[15] The reason: As perhaps the animal was bitten by a snake, and the venom is absorbed in its skin. [ibid; See Chulin 94a]

[16] Nitei Gavriel 132:9

[17] Mishmeres Shalom Samech 11; Nitei Gavriel 132:8

[18] Michaber 349:1; Sanhedrin 47b-48a; Rashba 365 adds regarding gentile; Darkei Chesed 12:18

[19] See Shach 349:1

[20] The reason: As the verse states, “And Miriam was buried there” and we learn a Hekesh from Egla Arufa that just as the Egla Arufa is forbidden in benefit, so too a corpse and all its burial garments are forbidden in benefit. [Shach 349:1]

[21] Nekudos Hakesef in name of Tosfos Baba Kama 10a and in implication of Harav Hamaggid in Machalos Assuros 2; Gr”a 349 in name of Rashba on Bava Kama; Mishneh Limelech ibid in name of Yerushalmi

[22] Michaber 349:2; See Chochmas Adam 157:4; Kitzur SHU”A 197:13; Aruch Hashulchan 349:5; Gesher Hachaim 8:2; Darkei Chesed 12:18; Nitei Gavriel 132:2-4

[23] Gesher Hachaim 8:1; Nitei Gavriel ibid

[24] Shach 349:3 in name of Bach

[25] Michaber 349:2

[26] Shach 349:3 in name of Bach

[27] Pischeiy Teshuvah 349:4

[28] Rama ibid

Woman with death sentence: The hair of a woman with a death sentence is permitted in benefit so long as she is still alive, prior to being put to death. [Rama ibid]

[29] Michaber 349:1; Pischeiy Teshuvah 349:4

[30] Michaber ibid

[31] Panim Meiros 3:33; Bechor Shur Avodas Kochavim 29b; Pischeiy Teshuvah 349:3-4; Kitzur SHU”A 197:13; Har Tzevi 276; Nitei Gavriel 132:3

[32] Binyan Tziyon 114; Gesher Hachaim 8:8; Nitei Gavriel 132:3

[33] See Nishmas Avraham p. 523-526 in name of Poskim; Igros Moshe; Rav SZ”A; Tzitz Eliezer; Shevet Halevi 7:189; Yabia Omer 10:50; Binyan Av [of Rav Batzri]

[34] The reason: As the item was never placed in the body with intent for him to be buried with it, and hence does not receive a benefit prohibition. Like

[35] See Nishmas Avraham p. 523-526 in name of Poskim; Igros Moshe; Rav SZ”A; Tzitz Eliezer; Shevet Halevi 7:189; Yabia Omer 10:50; Binyan Av [of Rav Batzri];

[36] Michaber 349:3

[37] Shach 349:5

[38] Michaber ibid; See Rama ibid that the saver is obligated to guard the item and must return it to the parents after their wrath and anguish dissipate. If, however, they return it to the parents right away, they become liable for damages.

The reason: As certainly the parents will later regret throwing the items, and it is hence a Mitzvah to return due to Hashavas Aveida. [Shach 349:4]

[39] Michaber 349:4; 350:1 as explained in Shach 350:2; Miseches Semachos 9; See Admur Hilchos Shemiras Haguf 14

Burning the items of a king: See Michaber 348:1 that one may burn the items of a king or president, but not of a regular person

[40] Rama ibid

[41] Michaber 363:5; See Pischeiy Teshuvah 363:6; Igros Moshe 1:244; Nitei Gavriel 49:9

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