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09/25/14 It's the Law: Ashes to Ashes - Are Remains Property?

It's The Law

Ashes to Ashes – Are Remains Property?

(09/25/14)

Question:

I have heard of people fighting over who gets the ashes of a cremated relative. It occurred to me that the ashes could easily be divided, just like any other property. What would a Florida court do?

Answer:

I do not know how often there is a battle over ashes of a decedent, but nobody wanted to fight enough for an appellate court decision in Florida until earlier this year. On May 21, 2014 Florida's Fourth District Court of Appeal decided the case of Wilson v. Wilson.

In the Wilson case, a father and mother argued over disposition of their 23 year old son's remains. The son died without a will and without written or verbal instructions for disposition of his body. Had he left instruction, Florida would have ordered the decedent's instruction to be followed. Absent instruction from the decedent, the parents argued. The mother wanted to bury her son's ashes in West Palm Beach and the father wanted to bury them in a family burial plot in Blue Ridge, Georgia. The father requested the court declare the ashes property and direct the funeral home to divide them so that each parent could dispose of half of the ashes as they desired. For religious reasons, the mother opposed division of the ashes.

The trial court denied the father's request and refused to declare the ashes property. The court ordered the parents, as co-personal representatives of their son's estate, to carry out their duties and finally dispose of the ashes within 30 days. If they were unable to reach agreement, the court indicated it could appoint a curator or other suitable person to carry out the task. Father appealed.

The appellate court noted there were no other Florida cases addressing the issue. With that in mind, its analysis went back to 1753 and a writing by Sir William Blackstone, an English legal scholar. In that comment, Blackstone noted that pews in a church are similar to the ashes of a decedent. The pews may descend by custom immemorial from the ancestor to the heir. But, though the heir has a property in the monuments and escutcheons of his ancestors, he has none in their bodies or ashes.

The court noted the non-property status of a decedent's ashes was also expressed in an English court case in 1857, Regina v. Sharpe. In Regina, the defendant appealed a misdemeanor conviction for wrongful removal of a corpse from a grave. The court in that case said "our law recognises (sic) no property in a corpse, and the protection of the grave at common law, as a contradistinguished from ecclesiastical protection to consecrated ground, depends upon this form of indictment…" In review of that case, the court noted that the English view was that the secular courts would protect the monument, grave-clothes, even down to the ribbon which tied the queue, but the Church would guard the skull and bones.

The court noted Florida's probate code defines property as "both real and personal property or any interest in it and anything that may be subject of ownership." The definition existed since 1975.

The court also reviewed the 1986 case of State v. Powell. In that case, Florida's Supreme Court confirmed that next of kin have no property rights in the remains of a decedent. And, in a later decision, Florida's Supreme Court explained that right to the remains is limited to "possession of the body for the purpose of burial, sepulture or other lawful disposition", and that is not a property right.

The court concluded that cremated remains are treated the same as the body of a decedent and affirmed the decision of the trial judge.

These types of disputes are extremely emotional. Good lawyering is essential to promote calmness and hopefully resolution without the tribulation of court action

By: William G. Morris, Esquire.

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle Other articles of interest can be viewed at our website, www.wgmorrislaw.com

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