Cremated Remains: An Uncomfortable Topic But Necessary To Discuss

Generally, families are in agreement over the disposition of cremated remains but in a recent 4th District Case, Wilson v. Wilson, 138 So. 3d 1176 (Fla. Dist. Ct. App. 2014), the District Court upheld a longstanding legal principle that a decedent’s cremated remains are not “property” subject to partition after a twenty-three year old Florida man tragically died in an automobile accident and a dispute arose about where his cremated remains should be buried.

As most young adults, the decedent did not have will or preplanned funeral arrangements. The decedent’s divorced parents agreed the body should be cremated but could not agree as to the burial location. The father wanted the ashes to be buried in Georgia and the mother wanted the ashes buried in Florida. For religious reasons the mother opposed the funeral home dividing the ashes so the father petitioned the probate court to deem the ashes “property” and judicially partition the ashes.

The father relied on case law from other states that allow ashes to be deemed “property.” The mother argued ashes should not be deemed property and next of kin should only have a limited possessory right to remains solely for disposition purposes. The trial court agreed with the mother and the district court affirmed. The District Court refused to forge a new legal precedent and stated “such a sensitive subject is best left for the legislature.”

Advice:

Speak to your young clients and clients who have young adult children about implementing basic estate planning documents. Please never think “this will not happen to me.”