Dear Rabbi Kornfeld,
There was some confusion in the shi'ur today regarding the halacha L'ma'aseh on wearing tefilin on the first day of Aveilus. Some said that if the "yom kevurah" - the day of burial, is the same day as the "yom ha'misah", then one does not wear tefilin at all that day; while others said that in either case, even when the burial is a day after the day of death, that the mourner sits "a bit" of "shivah", and then puts on tefilin to say "Shema". What is the halacha?
Best regards,
Jeff Ram, Jerusalem
There are two basic opinions in the Halachah. The TAZ (OC 38:3) holds that even if the Yom ha'Kevurah is not the same as the Yom ha'Misah, one does not put on Tefilin (the whole day). The MAHARITATZ holds that only if the Yom ha'Kevurah is the same day as the Yom ha'Misah is one Patur from Tefilin (see Be'er Heitev 38:4 and Dagul m'Revavah YD 388:5). Most Poskim hold like the TAZ, including the Mishnah Berurah, and this is the prevailing custom. The Gesher ha'Chayim, in his Sefer on Aveilus, records that the Minhag in Yerushalayim follows the opinion of the MAHARITATZ.
The custom you mention, of putting on Tefilin after sitting a bit of the day, is relevant to the second day of mourning - the day after the burial according to the TAZ, and the day after the death and burial according to the MAHARITATZ. Regarding that day, there are those that say that one wears Tefilin as on every other day, and those that say that he must wait till after Netz ha'Chamah to put on Tefilin (see Mishnah Berurah, 38:19, and Shulchan Aruch YD 388:5 and SHACH there).
If I were to speculate as to why Yerushalayim has a different Minhag from the rest of the world, I would say that it has to do with the hallowed tradition of Yerushalayim not to allow a body to remain unburied till the next day. As a result of this custom, the Yom ha'Kevurah and the Yom ha'Misa almost always coincide, and thus there was never a "foothold" for the Minhag of the TAZ to take hold.
Kol Tuv,
Yonason Sigler