When a loved one passes away, disputes can arise among family members over who will get what assets and how property will be distributed. Issues may also arise regarding what will happen to the deceased’s remains. Prior to 2016, Florida law was not well settled nor specific to deal with such disputes.
A crematorium authority is legally required to hand over the ashes to the person who delivered the body for cremation. That entitled individual has 120 days from the date of cremation to claim the ashes. There are no Florida state laws that restrict where you may keep or scatter ashes.
Pursuant to Florida Statutes Section 497.005(43)(a-i), the right and responsibility goes to the following people, in order-you, if you leave written directions before your death; your surviving spouse, unless your spouse is criminally responsible for your death; your adult child, or a majority of your children if you have more than one; your parents, your adult siblings, an adult grandchild, a grandparent, or any person in the next degree of kinship.
“In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.” According to the previously mentioned statute.
Another way to name the person who will carry out one’s final arrangements is to complete a Designation of Healthcare Surrogate. In the subject document, the maker of Principal can give their surrogate or Agent explicit power to carry out their final arrangements after their death. The said authority must be made clear in the healthcare document; otherwise, the Agent’s or surrogate’s decision-making power ends upon the Principal’s death. This method avoid additional documents and combines healthcare decisions and final wishes.
The disposition of a body is not a property right pursuant to Florida Statutes §732.6005(2), but a personal right of the decedent or deceased party; therefore, the decedent’s intent (as opposed to the survivor’s intent) controls the disposition of his own remains. See Cohen v. Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005). Consequently, the remains of a decedent are not property under Florida Statutes §731.201(32), and therefore, are not subject to ownership by the decedent’s or deceased party’s beneficiaries.
In 2014, a case which received attention was when a father attempted to split the cremated remains of his deceased son in equal shares with his ex-wife (the mother), arguing that the ashes or cremains were part of his son’s probate estate. With little guidance outside of the common law, the court decided the remains were not property subject to probate division. The court relied heavily on case law which supported the proposition that generally, next of kin do not have a property right in their deceased family member’s remains. So, what was the solution? Ultimately, it was up to a trial court judge to decide what would happen to the remains. For many, such a solution may be unsettling, especially because a judge’s decision may not be consistent with what the decedent would have wanted.
On July 1, 2016, the Florida legislature addressed the matter and enacted a statute which codified the common law rule that remains are not estate property. The relevant statute plainly states that cremated remains are not property which are subject to division. So, who has the final say over what happens to someone’s remains? The statute makes the answer clear by providing a list of persons who may be authorized to make decisions regarding what will happen to someone’s remains. The list is in descending order of priority beginning with the decedent’s written instructions. Leaving behind instructions will provide your family with clarity regarding your own wishes—what you want to happen to your remains, who you want to keep your remains, and who will be responsible for making sure your instructions are carried out. If no instructions are left behind, the list provides who else may be legally authorized to make decisions regarding the remains. Whoever is authorized to make final decisions over the remains, may consent to the distribution of the remains. However, if the conflict continues once cremated remains are divided, the dispute will be resolved by the court.
Can written instructions of the decedent regarding the place and manner of the disposition of his remains be overridden? If so, what is the evidentiary standard for overriding a decedent’s written instructions?
Florida Statutes §732.804, reads in pertinent part: “Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements.” However, a written testamentary disposition of a deceased’s burial instructions is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. See Cohen, supra.
If the deceased party has not expressed their intent regarding the place and manner of the disposition of their remains, who has the right to control the place and manner of the disposition of a decedent’s remains if the matter is subject to a dispute?
This question was answered in Giat v. SCI Funeral Servs. of Fla., LLC, 2020 Fla. App. LEXIS 17520; 2020 WL 7239589 (Fla. 4th DCA 12/9/20). In Giat, the decedent died without a Last Will or any written instruction regarding the disposition of his remains and his widow arranged for his funeral and cremation with Menorah Gardens. The decedent’s son filed suit to enjoin Menorah Gardens from cremating the decedent’s remains. The son stated in his verified petition that his father was born and raised Jewish and that his father had shared his wish with him to be buried in accordance with Orthodox Jewish law and custom and not to be cremated. The court held that “[b]ecause both parties dispute the decedent’s wishes, each party should be allowed to present evidence to determine the decedent’s wishes. Where a question of fact subject to proof is unanswered, an evidentiary hearing on the issue is required.”
The court reasoned that common law and not Chapter 497, Florida Statutes, controls the dispute between family members over the disposition of the decedent’s remains.
The focus of Chapter 497, Florida Statutes, is the relationship between funeral homes and the persons who seek their services. The definition of “legally authorized person[s]” specifies the persons with whom a funeral home may contract to arrange services. Section 497.005(43) does not purport to designate the right to control the manner of disposition of a corpse where there is a dispute among family members; that section does not provide what acts the listed persons can perform or what rights they have under Chapter 497. No section in Chapter 497 containing the term “legally authorized person[s]” designates the person with the right to control the manner of the disposition of the dead body if the matter is subject to dispute.
To the contrary, section 497.383(2), Florida Statutes (2022), provides that “[a]ny ambiguity or dispute concerning the right of any legally authorized person to provide authorization under this chapter or the validity of any documentation purporting to grant that authorization shall be resolved by a court of competent jurisdiction.” This statute recognizes that, when there is a dispute over the disposition of a decedent’s remains, the issue is a matter of common law.
The preferred and recommended option to avoid disagreements over disputed remains is to plan ahead. With proper Florida Estate Planning, one can name the appropriate person to make these decisions in order to avoid disputes later on.
In summary, if the deceased party expressed an intention on the disposition of their remains through a Last Will & Testament or other written directions, then the court will defer to the said Last Will or written directions unless an opponent can prove by clear and convincing evidence that the deceased party changed their mind. If the deceased never expressed an intention regarding the disposition of their remains in their Last Will, etc., then the court will defer to the next of kin. The next of kin are the heirs at law under the laws of intestacy. The law is still somewhat unclear as to who has priority when the next of kin disagree. The disposition of one’s remains is a sensitive issue and a decision which is best made by the decedent exclusively through their Last Will & Testament or other written directions.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.
