Posts Tagged ‘human remains’

“The Dead Have Rights, Too”

We really like Tennessee lawyer Tim Takacs. His bi-weekly online (and e-mail) newsletter was one of the original inspirations for our own Elder Law Issues, and he has provided his clients and his readers with interesting, up-to-date and informative reading material for nearly two decades now.

Tim’s last-week Elder Law Fax addressed an interesting topic that we have touched on before here: who is in charge of decisions about and care of the dead? In the Tennessee case Tim reports on, the human remains in question had been buried in a family cemetery decades or centuries before, and there were no descendants to protect or care for their graves. Could the remains be moved to make room for a new owner to develop the property? That’s the issue he tackles in The Dead Have Rights, Too.

Interested in more on the subject? Check out our own articles taking on the burial/human remains issues.

Father’s Body, Moved Once, Need Not Be Moved Yet Again

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.

Cremation Approved Despite Objection From Next of Kin


John Cottingham tried to make it clear that he wanted to be cremated. Even his will directed his family and friends to see to that wish. His mother, however, disapproved—and it took a court proceeding to overturn her decision to have him buried.

Elder Law Issues has previously reported on how difficult it can be to ensure that your wishes for burial or cremation are carried out. In April, 2000, we described what happened in Wisconsin when James Wrosch died. His mother and sister insisted that his body be buried, rather than cremated, despite his clear instructions to the contrary. Mr. Wrosch’s family had even signed forms agreeing to the cremation before he died, but they were permitted to renege after his death. See Family Members Permitted to Ignore Decedent’s Burial Plans, April 24, 2000.

John Cottingham’s circumstances were strikingly similar. In 1996 he signed a will which included this provision: “It is my wish and I direct that my body shall be cremated after my death.” When he died three years later, however, his mother objected to the arrangements, intervened and directed that his body be buried.

Mr. Cottingham’s friend James McKee secured appointment in the Alabama probate court as personal representative of his estate. Four months after the burial Mr. McKee asked the court to exhume the body and arrange for the cremation Mr. Cottingham had originally directed.

Mr. Cottingham’s mother objected to the exhumation and cremation. She argued that the law permits next of kin to make burial arrangements, regardless of the decedent’s wishes. In support of that argument, she filed affidavits from three Alabama funeral directors indicating that funeral industry practice is to honor the instructions of the next of kin rather than the wishes of the decedent.

Mr. McKee filed his own affidavits—statements from four of Mr. Cottingham’s friends indicating that he had told them he preferred cremation. After a hearing the court decided that Mr. Cottingham’s wishes should be followed, and approved the delayed cremation. Mrs. Cottingham appealed.

The Alabama Supreme Court partially agreed with Mrs. Cottingham. The general rule, said the justices, is that the next of kin controls the disposition of the decedent’s body. When the wishes of the decedent are clear, however, those wishes are entitled to “respectful consideration” and should be “carried out as far as possible.” The Court upheld Mr. McKee’s order for exhumation and cremation. Cottingham v. McKee, September 7, 2001.

As Mr. Cottingham’s burial and exhumation make clear, the laws in different states can take different approaches to the same problem. Advance arrangements and clear instructions can help ensure that your wishes are carried out, but may not guarantee that they are. Depending on state law, that may not be enough.

We have previously explained that Arizona law is at least somewhat clearer on the issue of the burial wishes of decedents. Those wishes are to be carried out unless they create an “economic or emotional hardship.” The meaning of  “hardship” is still uncertain in Arizona, however.

©2021 Fleming & Curti, PLC