Conflicts over what to do with the remains of a loved one upon death is an extremely sensitive situation. Family members may disagree over details of the decedent’s funeral, where it should take place, or which religion should govern the ceremony. Likewise, disagreements often arise over whether the decedent should be cremated or buried. If cremation is chosen, should the ashes be interred or scattered? If a burial is chosen, which cemetery will serve as the permanent resting place? The list of possible disputes is endless.

There are two ways to avoid such family conflict: clearly state your end of life wishes in your Last Will and Testament (“Will”) or make advanced funeral arrangements by pre-purchasing a lot, or an entire burial or cremation package. Otherwise, you leave the decision up to your loved ones who may end having to navigate the court system for a resolution.

If your family finds themselves in the latter situation, know that family members must act quickly since courts will consider a challenge to possessions of a body moot after a burial occurs. For example, in Leadingham vs. Wallace a dispute arose between the decedent’s ex-wife and ex-girlfriend, (each one was the mother of two children of the decedent), as to who should have the right to bury him. The circuit court appointed the decedent’s ex-girlfriend as the one to bury him and the record reflected that the body was buried. In affirming the circuit court’s decision, the Fifth District Court of Appeal held after burial occurs, a further challenge for possession of the body is moot. The Fifth District Court of Appeal explained that an appellate court will not determine a controversy where the issues have become moot.

Moreover, the family members may be affected not only by financial damages, but mentally and emotionally by the court process. If a court procedure is in progress, the decedent’s remains could be held by the medical examiner’s office for many months during the evidentiary hearings. This could contradict with a decedent’s religious beliefs, which may require burial within days of death.

There are no statutes that substantively govern the disposition of remains. The Florida Probate Code has one provision. Fla. Stat. §732.804 (2018) provides that before issuance of letters of administration, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements. The general rule is if a decedent has provided burial instructions exclusively in his or her Will; the burial instructions articulated in the Will should be followed.

Florida courts have long held that testamentary directions are to be complied with to the fullest extent possible. There is no higher duty nor greater responsibility on the courts than that of seeing to it that the Will of the dead is honored. However, confusion arises when a decedent’s burial instructions in their Will are contradicted by later actions. According to the Florida Probate Code, a Will disposes of property that the decedent owned at death. Courts have held that a decedent’s remains are not property and therefore, a directive in a Will regarding the disposition of a body does not have the same force and effect as do provisions directing the disposition of property.

Below are actions often considered as evidence that the decedent changed his or her mind after execution of their Will:

• Purchasing a prepaid funeral plan
• Purchasing or selling a burial plot
• Converting to a religion that does not believe in cremation
• Death bed conversations with relatives

Confusion also arises when the decedent did not provide burial or cremation instructions in his or her Will. The Supreme Court of Florida held that in the absence of a testamentary disposition to the contrary, a surviving spouse or next of kin has the right to the possession of the body of a deceased person for the purpose of burial, sepulcher or other lawful disposition which they may see fit. Fl. Stat. § 744.102 (2018) defines next of kin as those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased. Pursuant to these statues, generally, the spouse followed by the decedent’s children have priority.

However, the common law decisions in Florida do not provide a clear roadmap for practitioners under all circumstances. The common law decisions do not address scenarios where there are many heirs at law at different levels on the chart of consanguinity who may disagree. The best way to ensure that family conflict is avoided is to get a properly executed Last Will and Testament done by an estate planning attorney in the state in which you reside. Contact OC Estate & Elder Law at (954) 251-0332 or info@ocestatelawyers.com for a free consultation to be truly prepared for all the eventualities of aging. Our attorneys are fluent in English, Spanish and Russian.