Misva #598: Yibum

The Torah commands in Parashat Ki-Teseh that if a married, childless man dies, and he has a brother, then the brother must perform “Yibum,” meaning, he must marry the widow. If he does not wish to marry her, then he performs a ceremony called Halisa, which is listed as a separate Misva. In explaining the reason behind the Misva of Yibum, the Sefer Ha’hinuch writes that when a couple marries, they are considered a single unit. This idea is rooted in the very first married couple – Adam and Hava – in that Hava was created from a part of Adam’s body. This shows that a wife is, in a sense, regarded as part of the husband. Now when a husband dies without leaving behind a spiritual legacy in the form of children who inherit his devotion to serving G-d, the Torah creates a method by which the deceased husband can be considered to beget children, such that he leaves a legacy. His brother marries the widow – who is considered part of the deceased – and their children will be considered the children of the deceased. The Misvot they perform will be partially credited to the deceased, thus elevating his soul. Of course, the biological father – the deceased’s brother – also shares in these merits, as he is the one who actually produces and raises the children. But in this way, the deceased can be considered to partially leave behind a spiritual legacy, and this is why the Torah introduced the concept of Yibum. The Sefer Ha’hinuch explains on this basis the story of Onan, Yehuda’s second son, who married the widow of his older brother, Er, in fulfillment of the Misva of Yibum. However, although Onan married the widow, the Torah (Bereshit 38:9) tells that Onan refused to impregnate her, because he knew “Ki Lo Lo Yiheyeh Ha’zara” – “that the offspring would not be his.” The Sefer Ha’hinuch interprets this to mean that the child he would produce would not be attributed entirely to him, as he would be “sharing” this child with his deceased brother. Onan was not interested in only a partial share of the child, and so he refused to produce children with the widow. In any event, according to the Sefer Ha’hinuch, the concept underlying the Misva of Yibum is that it enables the deceased to leave a spiritual legacy here in the world through his brother’s marriage to his wife. The Misva of Yibum applies regardless of whether the husband died after he married his wife, or he died after Erusin (betrothal), before the completion of the marriage. Only a paternal brother is required to perform Yibum; a brother who shares only a mother with the deceased, and not a father, is not required to marry the widow. If the deceased was married to several wives, and had no children with any of them, then one of his brothers performs Yibum or Halisa to any of the deceased’s wives. The oldest surviving brother has first rights to perform Yibum, before the younger brothers. Once a brother performs Halisa, the widow may then not marry him. If the deceased also had other wives, they are also forbidden for marriage to the brother who performed Halisa, and also to all the other brothers, by force of Rabbinic enactment. Yibum should not be performed immediately after the husband’s death. The brother must wait ninety days – including the day of death and the day of the Yibum – as it must first be ascertained that the widow is not pregnant with the deceased’s child. If she is, then there is no Misva of Yibum, and thus the brother-in-law may not marry her. Therefore, a waiting period is required to ensure she is not pregnant before the deceased’s brother marries her. If a husband died while his wife was pregnant with his only child, but she miscarried, then she requires Yibum, because the deceased did not leave any children. The deceased’s brother fulfills this Misva by having relations with the widow. He fulfills the Misva even if he did not have intention at the time of the relations to fulfill the obligation. However, the Sages enacted that the brother should formally betroth the widow before having relations. This special betrothal before Yibum is referred to as a “Ma’amar.” The Misva of Yibum applies in all times and places. Even today, the brother of a childless husband who dies is required to perform Yibum, but it is customary to instead perform Halisa. If the brother performed neither Yibum nor Halisa, then he is in violation of this affirmative command.