Our modern society seems to have difficulty addressing the issue of dying and death and that fact is reflected in many of our institutions and words used to describe the very natural act of dying. One “passes away” or “is in everlasting sleep.” Our instructions as to when to let people die is called a “Living Will” when in reality it is instructions for death. The list goes on and on.
It was not always so. The front parlor which still exists in many homes was called a parlor because that is where a hundred years ago people would put the body of relatives to be viewed before burial. It was only used for that purpose. People normally died at home, not in hospitals and the family performed the services normally now performed by hospice. See our article on Living and Dying Preparations for a further discussion of these issues.
The rights and obligations applicable to human remains is a topic of critical importance to a family facing a death yet is a subject that is seldom discussed or considered. This article shall outline the responsibilities and rights as to human remains.
The Basic Law:
A dead body is the physical remains of an expired human being prior to complete decomposition.
State legislatures have adopted many statutes that regulate the disposal of dead bodies. Although the right to a decent burial has long been recognized at common law, no universal rule exists as to whom the right of burial is granted.
The right to possession of a dead human body for the purpose of burial is, under ordinary circumstances, in the spouse or other relatives of the deceased. Sherman v. Sherman, 330 N.J. Super. 638 (Ch.Div. 1999). However, an unrestricted property right does not exist in a dead body. The matter of the disposition of the dead is so involved in the public interest, including the public’s health, safety, and welfare, that it is subject to control by law instead of being subject entirely to the desires, whim, or caprice of individuals. Wolf v. Rose Hill Cemetery Ass’n, 832 P.2d 1007 (Colo. Ct. App. 1991).
A body may not be retained by an undertaker as security for unpaid funeral expenses, particularly where a body has been kept without authorization and payment is demanded as a condition precedent to its release. At times, the need to perform an autopsy or postmortem examination gives the local coroner a superior right to possess the dead body until such an examination is performed. The general rule is that such examinations should be performed with the exercise of discretion and not routinely. Some state statutes regulate when an autopsy may be performed, which may require the procurement of a court order and written permission of a designated person, usually the one with property rights in the corpse.
The preference of the deceased concerning the disposition of his or her body is a right that is usually strictly enforced. Some states confer this right, considering a decedent’s wishes as of foremost importance.
For instance, Utah Code Ann. § 75-3-701 provides that, “the duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.”
In most instances, the courts will honor the wishes of the decedent, even in the face of opposition by the surviving spouse or next of kin. If for some reason a decedent’s wishes cannot be carried out, direction should be sought by the court if unanimous consent of the family to an alternative is not easily attained. The court will decide how the body shall be disposed of and will most likely do so according to the wishes of the surviving spouse or next of kin, provided those wishes are reasonable and not contrary to public policy.
After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control and direction of the court.
Control of the Body and Burial:
Certain rights and duties exist regarding the burial and disposal of the body of a decedent. Upon the death of a married person, the surviving spouse has the paramount right as to the custody of the remains of the deceased and its burial. Radomer Russ-Pol Unterstitzung Verein v. Posner, 176 Md. 332 (Md. 1939). There is no right of property in a dead body in the ordinary sense, but it is regarded as property so far as necessary to entitle the surviving spouse or next of kin to legal protection of their rights in respect to the body. Lubin v. Sydenham Hospital, Inc., 181 Misc. 870 (N.Y. Sup. Ct. 1943).
While the primary and paramount right to possession of the body and control of the burial or is vested in the surviving spouse, the right of a surviving spouse to control the burial is dependent on the peculiar circumstances of each case, and may be waived by consent or otherwise. Southern Life & Health Ins. Co. v. Morgan, 21 Ala. App. 5 (Ala. Ct. App. 1925). This means that the right of a surviving spouse to the custody of the dead body for purposes of burial is not an absolute one. For example, if a spouse does not promptly assert their rights to the body, then the right to possession of the body for burial will be waived in favor of the next of kin. Id, Southern Life.
Additionally, if the deceased had expressed any particular place for his/her burial, then consideration must be given to that place. However, in the absence of such a circumstance, the surviving spouse is entitled to select a place of burial. If there arises any dispute between the surviving spouse and the next of kin, then the spouse’s preference prevails in determining the place and time of burial, and manner of disposal. If there is no judicial separation, a wife separated from her husband has some rights regarding the funeral services of her husband. However, if she does not exercise these rights, the estate of her husband must bear the reasonable costs of his funeral and burial. In re Estate of Barner, 50 Misc. 2d 517 (N.Y. Sur. Ct. 1966)
If there is no surviving spouse or the surviving spouse has waived the right, the right of burial of a dead body is in the next of kin in the order of their relation to the decedent. In other words, if there is no surviving husband or wife, the right lies in the next of kin in the order of their relation to the decedent, usually in the following order: children of proper age, parents, brothers and sisters, or more distant kin. This rule of priority is to be applied with reason. It is flexible and may be modified by circumstances of the moment. Pettigrew v. Pettigrew, 207 Pa. 313 (Pa. 1904).
However, if two or more persons with equal standing as next of kin disagree on disposition of the decedent’s remains, then preference will given to the person who had the closest relationship to the deceased. In re Estate of Weiss, 2009 Phila. Ct. Com. Pl. LEXIS 236 (Pa. C.P. 2009). In the absence of a surviving spouse, wishes of the next of kin regarding control of the body depend upon the nearness of the kinship and the personal relations between them and the decedent. In exceptional circumstances, a distant relative or a friend not having any blood relation may possess a superior right. Pettigrew v. Pettigrew, 207 Pa. 313 (Pa. 1904)
In some jurisdictions, while delineating the rights of family members to control the disposition of the remains of a deceased person, the courts clearly places the decedent first. Further, the decedent’s preference may be determined by resort to both testamentary and nontestamentary statements. Sherman v. Sherman, 330 N.J. Super. 638 (Ch.Div. 1999). The extent to which the desires of a decedent as to the method of burial or disposal of his/her body will prevail against those of a surviving spouse depends in part on circumstances as to the mental condition of the decedent. However, if a decedent is proved to be mentally incapable, then his/her stated wishes often will not be given effect. Rosenblum v. New Mt. Sinai Cemetery Asso., 481 S.W.2d 593 (Mo. Ct. App. 1972).
A surviving spouse has an implied contractual obligation to pay for necessary funeral expenses arranged by a third party. However, such expense must be reasonable. The test in determining reasonableness states that the surviving spouse must assist according to his/her ability to do so.C. Battle & Sons Funeral Home v. Chambers, 63 Ohio Misc. 2d 441 (Ohio Mun. Ct. 1993).
In the absence of a normal parental and filial relationship at the time of death, an adult child may not claim a paramount right as the nearest next of kin to dictate the manner and place of his/her parent’s burial. In re Application Pursuant to Article 4200 of the Pub. Health Law, 196 Misc. 2d 599 (N.Y. Sup. Ct. 2003).
It is to be noted that if there is no surviving spouse or children for the deceased, then the deceased’s parents have the right to possession of the body. Similarly, if the parents are divorced, the right to bury the child belongs to the parent who was awarded with the custody of the child. If the duty to bury a person is given to a personal representative of the deceased person, then such representative has the right to bury the deceased. However, this right can be waived by the inaction of the executor with regard to the disposition of the body.
Types of Disposal and Rights and Obligations Applying:
Disposal of dead body is the practice and process of dealing with the remains of a deceased human being. Several methods for disposal are practiced. In many cases, the manner of disposal is dominated by spiritual concerns and a desire to show respect for the dead, and may be highly ritualized. This event may be part of a larger funeral ritual. In other circumstances, such as war or natural disaster, practical concerns may be forefront. Many religions as well as legal jurisdictions have set rules regarding the disposal of corpses. Since the experience of death is universal to all humans, practices regarding corpse disposal are a part of nearly every culture.
The most common methods of disposal are:
Many jurisdictions have enacted regulations relating to the disposal of human bodies. Although it may be entirely legal to bury a deceased family member, the law may restrict the locations in which this activity is allowed, in some cases expressly limiting burials to property controlled by specific, licensed institutions. Furthermore, in many places, failure to properly dispose of a body is a crime. In some places, it is also a crime to fail to report a death, and to fail to report the disposition of the body. See our article on the Law of Cemeteries.
Although common law did not regard dead bodies as property, the courts, through the centuries, have treated them in a quasi-property context. The right to the remains of one’s deceased kin for the purpose of providing proper burial has long been recognized as a legal right. The surviving next of kin have a right to the immediate possession of a decedent’s body for preservation and burial and damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body. This right, characterized as the right of sepulcher under common law, continues to be recognized by the courts notwithstanding the passage of many hundreds of years. Correa v. Maimonides Medical Ctr., 165 Misc. 2d 614 (N.Y. Sup. Ct. 1995).
All governments have recognized legitimate governmental interest in the provision of burial services in that the disposition of the dead is so involved in the public interest, including the public’s health, safety and welfare, that it is subject to control by law instead of being subject entirely to the desire, whim or caprice of individuals. In the exercise of its police power, the state may adopt reasonable regulations as to burials or other means of disposing of dead bodies. There is no question of the power of the legislature to exercise complete control of burials so far as is necessary for the protection of the public health and the promotion of the public safety. Thruston v. Little River County, 310 Ark. 188 (Ark. 1992).
Federal statutes authorize the payment of expenses for the burial or disposal of the remains of certain persons in federal custody, persons dying on or in federally owned property or facilities, and certain federal employees who die in the line of duty. Also, federal statutes authorize payment of interment of employees of the Immigration and Naturalization Service who die while in a foreign country in the line of duty. Federal provisions also make specific provision as to the payment of expenses for the transportation of dead bodies of particular individuals. For example, 10 USCS § 1483 provides that, “the Secretary concerned may provide for the care and disposition of the remains of prisoners of war and interned enemy aliens who die while in his custody and, incident thereto, pay the necessary expenses of–
(1) notification to the next of kin or other appropriate person;
(2) preparation of the remains for burial, including cremation;
(3) furnishing of clothing;
(4) furnishing of a casket or urn, or both, with outside box;
(5) transportation of the remains to the cemetery or other place selected by the Secretary; and
(6) interment of the remains.”
Further, 16 USCS § 17e provides that, “the Secretary of the Interior is hereby authorized, in his discretion, to provide, out of moneys appropriated for the general expenses of the several national parks, for the temporary care and removal from the park of indigents, and in case of death to provide for their burial, in those national parks not under local jurisdiction for these purposes, this section in no case to authorize transportation of such indigent or dead for a distance of more than fifty miles from the national park.”
The practice of cremation has been increasingly common in recent times, and it is advocated mainly on the ground that it is safer for the living, more sanitary, than ordinary burial in a cemetery. The practice has become general and crematories are now so common in many of the larger cities of the United States that the courts may take judicial notice of the usual method of operation. Abbey Land & Improv. Co. v. County of San Mateo, 167 Cal. 434, 439 (Cal. 1914).
In California, for example, according to Cal Health & Saf Code § 7010, “Cremation” means the process by which the following three steps are taken:
(a) The reduction of the body of a deceased human to its essential elements by incineration.
(b) The repositioning or moving of the body or remains during incineration to facilitate the process.
(c) The processing of the remains after removal from the cremation chamber
Cremated remains, which are not a health risk, may be buried or immured in memorial sites or cemeteries, or they may be legally retained by relatives or dispersed in a variety of ways and locations. Since a crematorium does not make “interments” within the meaning of a statute governing the cemetery business, it is not a cemetery corporation or association. Nevertheless, the regulation of crematories is within the police power of the municipality, and reasonable restrictions upon the operation thereof are valid.
In Abbey Land & Improv. Co. v. County of San Mateo, 167 Cal. 434 (Cal. 1914), the court held that “ a county ordinance which prohibits the establishment or maintenance in any one township of more than one crematory for the cremation of human bodies cannot be upheld as a police measure as against a cemetery association located near another crematory and in close proximity to several cemeteries and in a neighborhood where there are but few dwelling-houses and no buildings devoted to any business except that of burying the dead.”
Transportation of Bodies: Liability of Mortuaries:
According to the common law, it is the duty of a mortuary to deliver a dead body relatively in good condition to the relatives of the deceased person. A mortuary must do their duty with utmost care and attention. A reasonable expedience is expected from a mortuary that carries a dead body. Moody v. Messer, 489 S.W.2d 319 (Tex. Civ. App. Corpus Christi 1972). The mortuary will be held liable if any damage is caused to a dead body due to their negligence. Quesada v. Oak Hill Improvement Co., 213 Cal. App. 3d 596 (Cal. App. 5th Dist. 1989)
However, a mortuary that fails to deliver a dead body that is donated to medical students cannot be held liable either in contract or tort. In order to make a mortuary liable under a contract or tort, following conditions need to be satisfied. They are:
But a mortuary that has entered into a contract to ship the cremated remains of a dead body will be held liable for negligent performance, if cremated remains of a dead body are lost due to mortuary’s negligence.
Close relatives of the deceased person can sue the mortuary for tortuous infliction of emotional distress. Contreraz v. Michelotti-Sawyers & Nordquist Mortuary, 271 Mont. 300 (Mont. 1995). See our article on Torts.
In Quesada v. Oak Hill Improvement Co., 213 Cal. App. 3d 596 (Cal. App. 5th Dist. 1989), the plaintiff, sister of the deceased person, brought an action for damages against defendant/funeral home. The allegation against defendant/funeral home was that the defendant/funeral home mishandled the dead body and caused emotional distress to plaintiff. The defendant/funeral home delivered another person’s dead body for burial. In spite of the protest made by the relatives of the deceased person, the dead body was cremated in the plaintiff’s property. However, the trial court ruled in favor of defendant/funeral home for the reason that there was no contractual relationship between plaintiff and defendant/funeral home. Hence the defendant /funeral home had no duty towards plaintiff.
On appeal, the appellate court reversed the trial court judgment and held that the duty of defendant/funeral home was to be decided on the basis of test of foreseeability of injury to close relatives and friends of a deceased person. The court of appeal further held that plaintiff is a close relative of the deceased person and is entitled for damages.
The family of a deceased person has a personal right to bury the dead body of their relative. Any mutilation or disturbance of a dead body is considered as an interference with this personal right and it gives rise to an actionable wrong. Whoever negligently withholds a dead body or prevents it from cremation or cut open a dead body is liable for causing emotional distress. In order to bring an action for tortuous infliction of emotional distress against the mortuary, a plaintiff must establish that a defendant has caused a serious emotional distress to plaintiff intentionally. Powell v. Grant Med. Ctr., 148 Ohio App. 3d 1 (Ohio Ct. App., Franklin County 2002)
Apart from the tortuous liability, a mortuary will be imposed with criminal liability if a dead body is transported without removal permit or burial transit.
Expenses for transporting the remains/bodies of officers to their homes for burial, who die while performing their job in foreign countries, are paid on a written order of the Attorney General by the home country. In the case of persons employed with National Park Service, and indigents the expenses for transportation of deceased employee’s body or indigent’s dead body will be given by the Secretary of the Interior.