Family Members Permitted To Ignore Decedent’s Burial Plans

APRIL 24, 2000 VOLUME 7, NUMBER 43

In 1997 James Wrosch planned his own funeral. He made arrangements for cremation and instructed the funeral home to deliver his ashes to his good friend James Cady. He even had his mother, brother and sister sign forms agreeing that Mr. Cady could take charge of his remains.

Two years later Mr. Wrosch died. Mr. Cady, as instructed, made the arrangements for cremation. Before the ashes had been released to Mr. Cady Mr. Wrosch’s family members changed their minds. They notified Mr. Cady and the funeral home that they were revoking their prior authorization, and instructed that the ashes be delivered to them.

The funeral home decided that it would not release Mr. Wrosch’s ashes to anyone without a court order, and so his family brought a lawsuit to determine whether they had any right to the remains. The judge decided that Mr. Cady’s authorization to act for his friend had become irrevocable once Mr. Wrosch had been cremated, and directed that the ashes be delivered to Mr. Cady. The family members appealed the ruling to Wisconsin’s Court of Appeals.

The appellate court reversed and directed that the ashes be delivered to the family. The judges pointed out that the next of kin have the right to decide on disposition of remains. The waivers signed by Mr. Wrosch’s family members did not change that result, since they only provided that the funeral home could rely on Mr. Cady’s direction. Family members still had the power to revoke their authorization for release of the ashes to Mr. Cady. Remick v. Cady, 4/13/2000.

Could Mr. Wrosch have done anything else to ensure that his wishes would be carried out? The Court of Appeals suggests that an agreement between Mr. Cady and family members, signed before Mr. Wrosch’s death, might have been enforceable. If family members objected, however, it does not appear that the Wisconsin court would permit a non-family member to control the disposition.

This result is similar to that reached by the Florida District Court of Appeal last year. In the Florida case the decedent’s husband insisted on controlling the funeral services and burial despite the fact that the couple had been legally separated for three years. The couple’s adult daughter brought suit against the funeral home after it followed her father’s instructions about burial arrangements, but the court determined that he had the authority to direct disposition of his wife’s remains. Andrews v. McGowan, 8/18/1999.

The results might have been different for both cases in Arizona. While next of kin have the right (and the duty) to make burial arrangements under Arizona law, they are required by statute to follow the decedent’s wishes when known–unless they impose an “economic or emotional hardship.” Arizona Revised Statutes §36-831.01. Of course, that would permit Mr. Wrosch’s family members to argue that release of his remains to his Mr. Cady would have been an “emotional hardship,” and that term has not yet been defined by Arizona courts.

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