A Florida couple’s 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 were co-personal representatives of their son’s estate and the sole beneficiaries. After their son’s death, the parents, who had divorced prior to their son’s death, 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 a Florida Probate 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.  The probate court ruled in the mother’s favor and the appellate court agreed noting that the Florida supreme court has articulated, “[a]ll authorities generally agree that the next of kin have no property right in the remains of a decedent.” State v. Powell, 497 So. 2d 1188, 1191 (Fla. 1986) (emphasis added). The supreme court clarified its position in Kirksey v. Jernigan “to be consistent with the majority view that the right [to the remains] is limited to ‘possession of the body . . . for the purpose of burial, sepulture or other lawful disposition . . . .’” Id. at 1191–92 (citing Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950)).  It reiterated its position again in 2001 in Crocker v. Pleasant, 778 So. 2d 978, 988 (Fla. 2001), acknowledging that “there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.”

The Florida courts have ruled that ashes are the decedent’s remains. “Common law, our supreme court, and this Court have always held that a decedent’s remains are not property.”  As a result, the court would not order the ashes to be divided equally between the parents as “property” of the Decedent’s estate.

In Nevada, a person may arrange for their own cremation and the contract is required to include instructions for disposition of the ashes.  If no arrangements are made ahead of time, cremation may still be arranged by the following persons in order:  surviving spouse, an adult child, or either parent.  However, while the statute provides that a person may order cremation, it does not address the issue of the disposition of the ashes.

ESTATE PLANNING TIP:  If you have decided that you desire cremation, your Last Will and Testament should address the disposition of the ashes. Otherwise, someone you have not requested to handle your estate may make a decision you would not have wanted.  At the Law Offices of Lee A. Drizin, we specialize in taking the time to ensure that your wishes are made clear.  Call our Las Vegas Probate Attorneys at (702) 798-4955.

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