Duties and Rights to Body


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[i].  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[ii].

On the death of a husband or wife, the primary and paramount right to possession of the body and control of the burial or is vested in the surviving spouse.  However, 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[iii].  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[iv].

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[v].

Whereas, 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, as 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[vi].

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[vii].  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 possess connected a superior right[viii].

In some jurisdictions, while delineating the rights of family members to control the disposition of the remains of a deceased person clearly places the decedent first.  Further, the decedent’s preference may be determined by resort to both testamentary and nontestamentary statements[ix].  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.  However, if a decedent is proved to be mentally incapable, then his/her stated wishes cannot be given effect[x].

[i] Radomer Russ-Pol Unterstitzung Verein v. Posner, 176 Md. 332 (Md. 1939)

[ii] Lubin v. Sydenham Hospital, Inc., 181 Misc. 870 (N.Y. Sup. Ct. 1943)

[iii] Southern Life & Health Ins. Co. v. Morgan, 21 Ala. App. 5 (Ala. Ct. App. 1925)

[iv] Id.

[v] In re Estate of Barner, 50 Misc. 2d 517 (N.Y. Sur. Ct. 1966)

[vi] Pettigrew v. Pettigrew, 207 Pa. 313 (Pa. 1904)

[vii] In re Estate of Weiss, 2009 Phila. Ct. Com. Pl. LEXIS 236 (Pa. C.P. 2009)

[viii] Pettigrew v. Pettigrew, 207 Pa. 313 (Pa. 1904)

[ix] Sherman v. Sherman, 330 N.J. Super. 638 (Ch.Div. 1999)

[x] Rosenblum v. New Mt. Sinai Cemetery Asso., 481 S.W.2d 593 (Mo. Ct. App. 1972)


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