Persons Entitled to Possession of Body and Control of Burial

Certain persons are entitled to the possession of dead bodies and control of their burial.  Generally, a surviving spouse has the paramount right as to the custody and burial of the deceased upon his/her death[i].  On the death of a husband or a wife, the primary and paramount right to possession of the body and to control of any burial lies within the surviving spouse.  However, the right of a surviving spouse to control the burial depends upon the particular circumstances of each case, and may be waived by consent or otherwise[ii].  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.

However, if the right of the spouse is not promptly asserted, then the right to possession of the body for burial will be waived in favor of the next of kin[iii].  A dead body is considered property for the purposes of entitling a surviving spouse or next of kin to legal protection of their rights to the body[iv].  A surviving spouse’s duty to provide a decent burial for a deceased spouse constitutes a “necessity” under some statutes[v].

The right of burial ordinarily includes the right to determine the time, manner and place of burial[vi].  Generally, the surviving spouse can select the place for burial.  However, consideration must be given to the last expressed wish of the deceased, if any[vii].  If there is any kind of dispute between the surviving spouse and the next of kin of the decedent, then the spouse has the paramount right to determine the place of burial, manner of disposal of the body and the time of burial[viii].

If there is no judicial separation, a wife separated from her husband has some rights regarding the funeral services of her husband. A surviving spouse who was living apart from the decedent also has some rights concerning the decedent’s funeral and burial.  If s/he does not exercise these rights, the estate of the deceased must bear the reasonable costs of the funeral and burial[ix].  Under some statutory provisions, a person divorced from the decedent is not a “surviving spouse,” and is not entitled to custody of the decedent’s body for purposes of burial or disposal.

A surviving spouse has an implied contractual obligation to pay for necessary funeral expenses arranged by a third party.  However, such expense must be reasonable.  The test in determining reasonableness states that the surviving spouse must assist according to his/her ability to do so[x].

However, it is to be noted that, if there is no surviving spouse or the surviving spouse has waived the right, then the right of burial of a dead body lies upon 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[xi].

In the absence of a normal parental and filial relationship at the time of death, an adult child may not claim a paramount right as the nearest next of kin to dictate the manner and place of his/her parent’s burial[xii].  It is to be noted that if there is no surviving spouse or children for the deceased, then the deceased’s parents have the right to possession of the body.  Similarly, if the parents are divorced, the right to bury the child belongs to the parent who was awarded with the custody of the child.  If the duty to bury a person is given to a personal representative of the deceased person, then such representative has the right to bury the deceased.  However, this right can be waived by the inaction of the executor with regard to the disposition of the body.

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

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

[iii] Id.

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

[v] J.C. Battle & Sons Funeral Home v. Chambers, 63 Ohio Misc. 2d 441 (Ohio Mun. Ct. 1993)

[vi] Estate of Fischer v. Fischer, 1 Ill. App. 2d 528 (Ill. App. Ct. 1st Dist. 1954)

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

[viii] Sullivan v. Catholic Cemeteries, 113 R.I. 65 (R.I. 1974)

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

[x] J.C. Battle & Sons Funeral Home v. Chambers, 63 Ohio Misc. 2d 441 (Ohio Mun. Ct. 1993)

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

[xii] In re Application Pursuant to Article 4200 of the Pub. Health Law, 196 Misc. 2d 599 (N.Y. Sup. Ct. 2003)


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