Kiddushin 64

Deathbed confession.

A somewhat cryptic mishnah on today’s daf states: 

One who said at the time of his death: “I have children,” — he is believed. But if he said on his deathbed: “I have brothers,” — he is not believed.

What is going on here? And what does it have to do with the topic of our tractate? A lot, it turns out.

For those that have been with us since Tractate Yevamot, you’ll recall that a woman married to a man who dies childless is required to marry her brother-in-law in a levirate marriage for the purpose of becoming pregnant and raising up that child in her dead husband’s name. (If the brother-in-law performs the ceremony of halitzah, both are released from this obligation.) Two things have to be true in order for levirate marriage to occur: The dying husband must have no children, and he must have brothers.

Coming back to the text of the mishnah, if a man says “I have children,” thus permitting his wife to begin a second marriage with a man of her choosing, he is believed. But, if he says “I have brothers,” thus limiting her choice for remarriage, he is not believed. Why not? 

The Gemara explains:

Apparently, a husband is deemed credible to render his wife permitted but he is not deemed credible to render her forbidden. 

Therefore, shall we say that the mishnah is not in accordance with the opinion of Rabbi Natan? As it is taught in a beraita: If someone said at the time of his betrothal that he has children, but at the time of his death he said that he does not have children; or if he said at the time of betrothal that he does not have brothers, and at the time of death he said he has brothers — in both cases he is deemed credible to render her permitted (i.e., to release her from the obligation of levirate marriage on the basis of his first statement), but he is not deemed credible to render her forbidden based on his last claim. This is the statement of Rabbi Yehuda HaNasi. Rabbi Natan says: He is deemed credible even to render her forbidden.

The Gemara seeks to issue a general rule: If what the husband says on his deathbed allows his widow to marry anyone she chooses, he is believed. If what he says forbids her from doing so, he is not believed. Rabbi Natan, however, says that he is believed in either case.

The Gemara goes on to discuss various ways to understand this beraita, including the need to determine whether it was general knowledge, or a “chazakah” (a presumption, or known fact) that the dying person had children or brothers, or neither. If it’s widely known that the man had children, then everyone knows the widow isn’t eligible for levirate marriage, and he is believed. But if it wasn’t general knowledge that he had brothers, and he says he does on his deathbed, he’s not deemed credible. Why not? 

We apply the logic of: “Why would I lie?” For what reason is he saying (that he has children or that he has no brothers), if not to exempt her from levirate marriage? But if so, he can say to her instead: “I exempt you by means of a bill of divorce.”

If the husband has no children, but wants to make sure his widow doesn’t have to follow through with levirate marriage to his brother, he doesn’t need to lie about having children; he just has to give her a conditional divorce — a possibility we have seen previously discussed in Tractate Gittin. Consequently, it can be assumed that he is telling the truth when he says that he has children.

But why would he lie and say he has brothers, which, if he’s childless, would obligate her to levirate marriage (or halitzah) with one of them? And why isn’t he believed? 

In addition to the chazakah — the general knowledge in the community that he doesn’t have brothers — I can think of two more reasons why the husband might make this statement on his deathbed. One is that he wants his widow to raise up a child in his name through levirate marriage because he thinks it’s important to do so. Another less savory possibility is that there’s someone specific that he wants to prohibit her from marrying and this is a way to exert his will from beyond the grave. 

While there’s no ruling on our daf, the original opinion of Rabbi Yehudah HaNasi is the one recorded in both the Mishneh Torah and the Shulchan Aruch: If the deathbed confession is the first anyone ever heard of these brothers, it’s too late to make that claim and the widow is free to marry whomever she chooses.

Read all of Kiddushin 64 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on October 16th, 2023. If you are interested in receiving the newsletter, sign up here.

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