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5-29-14 It's The Law - Burial Disputes - Who Controls?

It's The Law

Burial Disputes – Who Controls?



My best friend died and his family is now fighting over his funeral and burial arrangements. Who gets to make the final decision?


Florida Statutes appear to create the right of a person to direct the manner for conducting that person's funeral and what is to be done with that person's body after death. Section 765.514 establishes procedure for making anatomical gifts. Section 732.804 confirms that any person may carry out written instructions of a decedent relating to the decedent's body, funeral and burial arrangements. That statute further provides that if cremation is pursuant to a written direction signed by the decedent, the written direction is a complete defense to any claim against the person acting or relying on the written direction.

It is not uncommon for a person to include funeral and disposition directions in his or her Last Will and Testament and, you would think such direction would control. Florida courts disagree.

In Cohen v. Guardianship of Cohen, the decedent's Will directed that the decedent be buried in New York. The Will was over 20 years old. Since signing the Will, the decedent reportedly told his wife, who "had been by his side for 40 years," that he no longer wanted to be buried in the family plot in New York. At least part of his decision was his wife could not be buried in New York with him. He said he wanted to be buried in Florida so his wife could be buried next to him. The decedent's brother and sister, who did not get along with the wife, went to court in an effort to enforce the burial directions in the Will.

The trial judge ruled that the decedent's true intent was to be buried along side his wife and ordered the burial in Florida. The brother and sister appealed, arguing that the decedent's written burial instructions in his Will could not be disregarded.

The appellate court began its decision by explaining the common law of England, which Florida inherited, recognized no property or property rights in the body of a deceased person. This was due largely to the fact that ecclesiastical courts exercised jurisdiction over the affairs of decedents and no living person could make a claim for manner in which a decedent's body was handled. Later Florida decisions held, absent direction in a Will, spouse of the deceased or next of kin have the right to possession of the body for burial or other lawful disposition.

The court went on to explain that where a person expresses his exclusive intent through a Will as to disposition of his remains after death, his wishes should be honored. The court referenced a case in which the executor refused to follow directions in a Will that the decedent be cremated for reasons of conscience. The court concluded the executor was required to fulfill the decedent's directions. But, in that case, there was no evidence the decedent changed his mind between the time the Will was prepared and his death.

The court found no Florida cases on point, so reviewed cases around the country. According to the court, states have differed on whether Will provisions should be treated as binding on the court and the executor or as non-binding statements of desire which may be ignored by the surviving next of kin. According to the court, the majority of states treat such provisions as non-binding, leaving final decision with the next of kin. Many of those states have also held such provisions may be altered or cancelled informally.

In one case, the court even ruled that the written direction could be disregarded when the Will directed the decedent be buried in Palestine, her home for a few years, because she bought a burial plot in New York after she moved from Palestine. The court noted that there were no cases found in which a testamentary disposition was upheld in the face of credible evidence that the decedent changed his or her mind as to disposition of his or her body. The court ruled that the trial judge was correct.

That means that "next of kin" may control the burial arrangements. Next of kin are generally defined as those who would receive a decedent's property under intestate succession statutes (as if the decedent did not have a Will). That leaves the door open to dispute. Next of kin cases here argue and introduce evidence in court of a decedent's real intent. But, since Florida courts agree that a decedent's written directions in a Will should be followed, potential for dispute may be limited by including a clear directive in estate planning documents.

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.