A Case for Burial Instructions

In our article of May 19, we discussed the dangers of estate planning with online legal forms and encouraged the use of an attorney to craft a complete estate plan.  In follow-up to that article, we now highlight the issues raised in the recent case of Wilson v. Wilson out of the Fourth District, which further illustrate the need for a complete estate plan.

In this case, divorced parents, both named as Co-Personal Representatives of their adult son’s estate, were involved in a dispute over the remains of their son’s body.  The decedent died intestate, unmarried and without children.  The parents differed on where their son’s ashes should be buried.

The father requested that the cremated remains be divided between the parents, which the mother objected to for religious reasons.  The trial court found that the ashes were not property subject to partition and gave the parents thirty (30) days to dispose of their son’s remains, after which time the court might consider appointing a Curator to carry out the task.  The Fourth District Court of Appeals upheld the trial court’s decision, holding that remains were not property and suggesting that the Florida Legislature might further address this sensitive issue.

Currently, Section 732.804 of the Florida Statutes provides that any person may carry out written instructions of a decedent related to the decedent’s body and funeral and burial arrangements.  In the absence of written instructions, a surviving spouse or next of kin has a claim of entitlement to possession of a body for the purpose of burial or disposition under Florida case law.  Crocker v. Pleasant, 778 So.2d 978, 985 (Fla. 2001).

The order of priority for a decedent’s remains is set out in Section 497.005(39), Florida Statutes, which confirms the decedent’s first right to written directions.  In the absence of such written instructions, however, a conflict may arise in a situation such as one illustrated by the instant case, where two persons of equal priority disagree upon the disposition of a decedent’s remains.  While the legislature may provide further illumination on this issue, the surest way to prevent dispute is to provide written instruction regarding your wishes during your lifetime.  Such written instructions are easily incorporated as part of a well-drafted estate plan.