Human Remains Can Be a Difficult Subject of Estate Disputes

Sometimes the law is ill equipped to deal with some of the most sensitive subjects in life, especially in the area of estate planning and probate, which deals with often painful and sensitive issues. Trying to fit the staid, cold provisions of law into the realities of human interaction can often lead to miserable failures. This is especially true when it comes to what happens to the remains of our loved ones when they pass away.

Human Remains Pose an Estate Problem

When people pass, there is usually a body or ashes or some form of remains, depending on a family’s preferences. And in most cases, there is little dispute about how a body will be disposed of, or where it will be buried or stored.

But sometimes disputes arise, particularly with divorced families. Both families may have different opinions on what to do with the remains of loved ones. And even more than a probate fight over money or property between divorced families, a fight over the remains of a loved one can be contentious.

2014 Tragedy Creates Legal Issues

An example is the 2014 case between the divorced parents of a 23-year-old who was killed in the high-profile accident and criminal case involving Palm Beach mogul John B. Goodman. There, the parents agreed to have the body cremated, but argued over where to have the ashes buried.

The former husband proposed simply dividing the ashes between the two of them, and allowing each to bury their share of the ashes where they so choose, the same way that any property would be divided or partitioned between divorced spouses. The problem was convincing the court that the ashes of a deceased human are simply property, an uncomfortable proposition, to say the least.

There is actually no written law on whether human remains are property that can be divided, devised, or divvied up like actual personal property. But most courts, including the one in the case, have found that the basis of the law never intended for human remains to be treated the same as stocks or a painting collection. Remains are not assets that can be divided.

In a lot of ways, a dispute over human remains or how to bury or dispose of a human body can be seen like a custody dispute case. The remains are still considered the person, and the person can only be in one place or another, not partitioned.

Designee to be Appointed

The end result in the case was that the court ordered the divorced parents to either agree, or else a third party would be appointed to make the determination. It is likely that the appointed designee would consider the wishes of the parents and the life of the deceased, and perhaps take testimony as to what the deceased would have wanted. But in the end, the designee is still a stranger making a very sensitive decision.

Make sure your estate has plans for the most sensitive issues that may come up in life and death. Contact Tampa business, estate and probate attorney David Toback to discuss a comprehensive probate and estate plan.