Ashes to Ashes: Comparative Law Regarding Survivors' Disputes Concerning Cremation and Cremated Remains

Abstract

Who has the right to decide the manner in which the body of a deceased may be disposed of? If cremated, who has the right to the remains? Ashes to Ashes: Comparative Law Regarding Survivors’ Disputes Concerning Cremation and Cremated Remains conveys that one should plan for these unassuming post-mortem issues, as most state laws do not provide a complete framework when there is no testamentary instruction by the deceased. Although some states prioritize which survivors may authorize funeral arrangements or request cremation, none effectively provide directions to settle a dispute among survivors with equal standing that disagree regarding the ultimate disposition of the deceased’s body. Similarly, few states provide standards to settle a dispute between survivors with equal standing who each wish to keep or scatter the cremated remains of a deceased. Judicial determination is often needed, however reported opinions are scarce. Final disposition issues also arise in foreign law. Spain has no civil code regarding disposition of a deceased but delegates its funerary laws to local governments and autonomous communities, while the French have established an order of priority for funerary decisions and provide for a judicial determination and stay of the funerary process in case of dispute. French law even provides for division of ashes between family members. The author gives a brief history of cremation, a review of certain state and country funerary and crematory services laws, and concludes with an analysis and suggestions on how states may provide for disputes among survivors, including that France’s proposed legislation to provide a legal status for cremated remains is a step in the right direction.

Keywords: cremation, disposition of cremated remains, disputes over cremated remains

JEL Classification: K19, K33