If a dead person’s heirs disagree about where to bury his ashes, should the ashes be split among them?

May 22, 2014

From yesterday’s Florida Court of Appeal decision in Wilson v. Wilson (Fla. Ct. App. May 21, 2014):

The twenty-three year old son, 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. His parents are co-personal representatives of their son’s estate, and the sole beneficiaries. [Footnote: The parents were divorced prior to their son’s death.]

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 West Palm Beach, Florida. The father wanted to bury the son’s ashes in a family burial plot in Blue Ridge, Georgia.

The father petitioned the court to declare the ashes “property” to be partitioned under the probate code. This would allow each parent to dispose of half of the ashes as they desired. For religious reasons, the mother opposed having the ashes divided.

Specifically, the father requested the court to order that the ashes be divided into two containers, and the funeral home be directed to distribute the containers to the parties. After an evidentiary hearing, the trial court found that the ashes were not “property” subject to partition, and denied the father’s petition.

The court gave the co-personal representatives 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 curator or other suitable person to carry out the task. From this order, the father has now appealed.

The court concluded, based on longstanding American legal traditions, that a person’s remains aren’t “property” of his estate or of his heirs, and affirmed the trial court’s decision, which apparently means that there has to be either a negotiated agreement or a decision by some court-appointed decision-maker (who presumably is entitled to split the remains, as a matter of discretion rather than of property law). It seems to me that a better rule would be too conclude that ashes are indeed to be split in the event of disagreement among the heirs, even if they aren’t property; this would provide a simple, clear solution. But I can’t say that I’ve thought hard about the issue.

The opinion also quotes a passage from an earlier case, which strikes me as quite right:

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.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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