APRIL 13, 2009 VOLUME 16, NUMBER 36
Is it just us, or is the incidence of family disputes over funeral and burial arrangements on the rise? A recent court case from Indiana makes us think maybe there are still more variations on a theme we thought had long since been played out.
Sherman Warren died in 1970 and was buried in Barbourville, Kentucky. His wife Isabella then moved to Indiana, to live with their youngest daughter. When the daughter died, she was buried in the New Haven, Indiana, cemetery. In 2005, Isabella Warren petitioned the Kentucky courts for authority to disinter her husband’s remains and move them to Indiana.
A year later, four of the couple’s children petitioned the Indiana courts for authorization to once again disinter Mr. Warren’s remains, and to return them to his original burial plot in Kentucky. At the time their mother secured authorization for the first move, the children argued, she was already incompetent, and the Kentucky court order was therefore fraudulently obtained. While that court action was pending Isabella Warren died, and was buried next to her husband and their daughter—in Indiana.
Seven other surviving children of the Warrens’ disagreed. They thought both parents should be left right where they were, and they (plus the cemetery and the Indiana State Department of Health) asked the court to dismiss the lawsuit. The judge agreed, ruling that there was no basis on which another move should be authorized.
The Indiana Court of Appeals affirmed the result. According to the appellate court, there was no good reason for disinterment of the couple’s bodies. Warren v. IOOF Cemetery.
Maybe the issue is older than we imagined. The Indiana court cites as authority for one of its points a 1904 Pennsylvania case involving a dispute over reinterment (Pettigrew v. Pettigrew). The court might also have cited:
- A 2007 Pennsylvania divorce case in which the divorcing couple disagreed over whether their son’s ashes should be divided into two separate urns or interred in a single plot as originally agreed upon between the spouses (the court sent the decision back to the divorce judge with some guidance to consider a number of factors. Kulp v. Kulp).
- A 2008 Mississippi case involving burial of a 10-year-old child whose parents had been locked in custody disputes at the time of her death. Her mother was seriously injured in the crash that killed the child, and so unable to participate in the initial burial decision (In re Spiers).
- An Idaho case from 2007, in which the father of a minor child had kidnapped the child, moved to Idaho and changed his and his son’s name. Nine years later the son was killed in an auto accident; the mother did not learn of the death for another year. Twenty-three years after learning where her son was buried, the mother sought authorization to move his remains to the state where she lived at the time. The Idaho Supreme Court left standing the trial judge’s ruling authorizing the move (Garcia v. Pinkham).
- A 2008 Arkansas case involving a dispute between the decedent’s ex-husband and adoptive father, on the one hand, and her mother and brother, on the other. The Arkansas Court of Appeals reversed an order refusing disinterment, and directed the trial court to weigh the factors in favor and opposed to the proposed move (Tozer v. Warden).
Most of the reported cases take the same analytical approach. The remains are treated like property, though a special, emotionally charged kind of property. In deciding whether to permit disinterment or other disruption of the remains, the courts look to the wishes of the decedent (if any), the degree of relationship of each of the contesting parties and their conduct, the length of time since the original interment, and the strength of the respective reasons advanced by the parties.
Though we do seem to be seeing more of these types of disputes, the cases have not been in Arizona. No similar family dispute is reported in the Arizona, though there is one important appellate decision involving some of the same issues. In Tomasits v. Cochise Memory Gardens, a 1986 Court of Appeals decision, the court upheld a trial court verdict of $25,000 against a cemetery after it moved the plaintiff’s parent’s remains without notice. The cemetery had accidentally sold the same plot to two different families; when the other family sued to gain possession of the plot, the cemetery followed the court’s order in that case but without giving notice to the other family.