Father Asks Court to have Son’s Ashes Divided

When parents disagree on the burial state for their son, ownership of remains comes into question.

Church Law and Tax Report

Father Asks Court to have Son’s Ashes Divided

When parents disagree on the burial state for their son, ownership of remains comes into question.

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.

The court began its opinion by observing:

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.”

The court concluded:

It is a sorrowful matter to have relatives disputing in court over the remains of the deceased. In this case in particular, there is no solution that will bring peace to all parties. We express our sympathies to both sides in their loss, which must be magnified by these proceedings. Cases such as this require the most sensitive exercise of the equitable powers of the trial courts. We are confident that the experienced trial judge exercised his power with due regard for the serious and emotional issues presented. Given the sensitive nature of the subject matter, and the fact that, historically, cremated remains have been treated the same as a body, neither constituting “property,” we decline to craft a policy at odds with our history and precedent. This is a matter best left to our legislature should it decide to address this sensitive policy issue.

What This Means For Churches:

Over the past few decades, cremation has become increasingly popular in the United States. The Cremation Association of North America (CANA) predicts that 60 percent of all deaths will result in cremation rather than traditional burial. This is due to a number of factors. Most importantly, many religious groups are becoming more tolerant of cremation. But perhaps just as important is the lower cost of cremation. CANA estimates that the average cost of a funeral is $7,500, far in excess of the $1,650 cost of cremation. The increasing popularity inevitably will cause disputes over the disposal of decedents’ remains, and this case provides a helpful analysis of the governing legal principles. Wilson v. Wilson, 2014 WL 2101226 (Fla. App. 2014).

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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