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Dead Bodies

A dead body is the physical remains of expired human beings 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[i].  However, a 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[ii].

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 should be 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.  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.

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

[ii] Wolf v. Rose Hill Cemetery Ass’n, 832 P.2d 1007 (Colo. Ct. App. 1991).

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