Who owns the remains of deceased persons whose bodies are cremated? This novel question was addressed by a Florida court in a recent case. A 23-year-old man, single and without children, died in a tragic automobile accident. He left no will and no written or verbal instructions for disposition of his body. After their son's death, the parents agreed to have his body cremated. They were unable, however, to agree on the final disposition of his ashes. The mother wanted to bury the son's ashes in Florida. The father wanted to bury the son's ashes in a family burial plot in Georgia.
The father petitioned a court to declare the ashes "property" to be disposed of according to probate law. This would allow each parent to dispose of half of the ashes as they desired. Specifically, the father requested the court to order that the ashes be divided into two containers, and the funeral home directed to distribute the containers to the individual parents. For religious reasons, the mother opposed having the ashes divided. After a hearing, the trial court found that the ashes were not "property" subject to the probate code, and denied the father's petition.
The court gave the parents 30 days "to carry out their duties and responsibilities to finally dispose of their son's remains." If they were unable to reach agreement, the court indicated that it might appoint a conservator or other suitable person to carry out the task. The father appealed this ruling, claiming that the trial court improperly relied on cases from other states with statutes that do not contain the same definition of "property" as Florida's probate code. He argued that the ashes fit within the plain meaning of "property" as defined by Florida law. The mother claimed that the ashes were not "property," and were not subject to ownership. Rather, she argued that the next of kin have only a limited possessory right to the remains for disposition purposes.Our probate code defines "property" as "both real and personal property or any interest in it and anything that may be the subject of ownership." Yet, as our supreme court has articulated, "all authorities generally agree that the next of kin have no property right in the remains of a decedent." The supreme court [claimed its] position "to be consistent with the majority view that the right [to the remains] is limited to 'possession of the body for the purpose of burial, sepulture or other lawful disposition.'" It reiterated its position again in [a 2001 case] acknowledging that "there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition." But a claim of entitlement is not a property right, nor does it make the remains "property."