Cremation

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Cremation is the burning to ashes of a person's body after death instead of having a burial. Often the ashes of a cremated corpse are then dispersed over water or land. The practice was traditionally so rare in Western societies that the word "cremation" did even not originate until 1874.

Cremation has ancient pagan origins. It has always been prohibited by Judaism and Islam and is still prohibited by the Eastern Orthodox Church. The Roman Catholic Church prohibited cremation until 1963, which it changed its policy to merely disfavoring cremation. Until 1997, the Catholic Church did not allow cremation until after the funeral mass, but now it allows cremation prior to the funeral mass if a local bishop approves, and Catholic cremations have greatly increased partly for economic reasons.

In 2006 in the United States, about one third of the 2.3 million persons who died were cremated, and this percentage is increasing.[1] Cremation rates are much higher in other countries: 75% in Japan and 70% in England.

Laws Concerning Burial or Cremation

The common law generally honored statements in wills, or in writing other than in wills, or orally, by a living person concerning the post-mortem burial or cremation of his own body.[2]

Some persons have attempted to exert control over the disposition of their body after death, to the point of even successfully suing the state to allow non-traditional approaches.[3]

Courts in some jurisdictions have held that because a corpse is not "property," a will is not the place for a decedent to control the disposition of his body.[4] Even in the states that authorize a person to specify in his will how his body should be treated after death, the will may never be reviewed until it is too late. Sometimes, as in the case of Ted Williams, the statement in the will is overruled by contrary intentions of the next of kin as supported by less compelling evidence.[5]

The States of Delaware and Connecticut have two of the clearest and strongest statutes for empowering a person to control the disposition of his post-mortem body, which can be used to prevent cremation.

In Delaware, 12 Del. C. § 262 (2007) ("Declaration of Disposition of Last Remains") dictates that:

The declarant may specify, in a declaration instrument, any 1 or more of the following:

(1) The disposition to be made of the declarant's last remains;
(2) Who may direct the disposition of the declarant's last remains;
(3) The ceremonial arrangements to be performed after the declarant's death;
(4) Who may direct the ceremonial arrangement after the declarant's death; or
(5) The rights, limitations, immunities, and other terms of third parties dealing with the declaration instrument.

In Connecticut, Conn. Gen. Stat. § 45a-318 (2007) (Formerly Sec. 45-253), Document directing or designating individual to have custody and control of disposition of deceased person's body. Funeral director's reliance on document. Individuals entitled to custody and control of disposition. Revocation. Form. Petition to court of probate, mandates that:

(a) Any person eighteen years of age or older, and of sound mind, may execute in advance of such person's death a written document, subscribed by such person and attested by two witnesses, either: (1) Directing the disposition of such person's body upon the death of such person, which document may also designate an individual to have custody and control of such person's body and to act as agent to carry out such directions; or (2) if there are no directions for disposition, designating an individual to have custody and control of the disposition of such person's body upon the death of such person. Such disposition shall include, but not be limited to, cremation, incineration, disposition of cremains, burial, method of interment and cryogenic preservation. Any such document may designate an alternate to an individual designated under subdivision (1) or (2) of this subsection.
(b) No person may challenge a funeral director's decision to carry out the directions for disposition contained in a document executed for the purposes of subsection (a) of this section if the funeral director's decision and conduct in carrying out such directions for disposition in reliance on such document was reasonable and warranted under the circumstances.
(c) In the absence of a written designation of an individual pursuant to subsection (a) of this section, or in the event that an individual and any alternate designated pursuant to subsection (a) of this section decline to act or cannot be located within forty-eight hours after the time of death or the discovery of the body, the following individuals, in the priority listed, shall have the right to custody and control of the disposition of a person's body upon the death of such person, subject to any directions for disposition made by such person pursuant to subdivision (1) of subsection (a) of this section:
(1) The deceased person's spouse, unless such spouse abandoned the deceased person prior to the deceased person's death or has been adjudged incapable by a court of competent jurisdiction;
(2) The deceased person's surviving adult children;
(3) The deceased person's surviving parents;
(4) The deceased person's surviving siblings;
(5) Any adult person in the next degree of kinship in the order named by law to inherit the deceased person's estate, provided such adult person shall be of the third degree of kinship or higher;
(6) Such adult person as the Probate Court shall determine.
(d) A document executed by a person for the purposes of subsection (a) of this section shall revoke any document previously executed by such person for the purposes of said subsection or any prior cremation authorization or other authorization for the disposition of remains executed by such person and may be in substantially the following form, but the use of such form shall not preclude the use of any other form:
DISPOSITION OF REMAINS AND APPOINTMENT OF AGENT
I, ...., of ...., being of sound mind, make known that upon my death my body shall be disposed of in the following manner:(Insert desired disposition directions)
I appoint ...., having an address and telephone number of ...., to have custody and control of my body to act as my agent to carry out the disposition directions expressed in this document, and in the absence of disposition directions, to have custody and control of my body and to determine the disposition of my body. If ... shall decline to act or cannot be located within forty-eight hours of my death or the discovery of my body, then ...., having an address and telephone number of ...., shall act in that person's place and stead.
Executed at (insert location of execution), Connecticut on (insert date of execution).....(Signature)
Signed in our presence by ... who, at the time of the execution of this document, appeared to be of sound mind and over eighteen years old.
... of ...
...
(Signature of witness)
... of ...
...
(Signature of witness)
(e) The court of probate for the district of the domicile or residence of a deceased person shall have jurisdiction to hear and decide any issue regarding the custody, control or disposition of the deceased person's body, upon the petition of any individual designated by the deceased person pursuant to subsection (a) of this section, the individual entitled to custody and control under subsection (c) of this section if no designation is made pursuant to subsection (a) of this section, the first selectman, chief executive officer or director of health of the town in which the deceased person's body is being held, or the funeral director or any other person or institution holding the deceased person's body, and upon such notice to interested parties as the court shall determine.
(f) This section shall not (1) apply to the disposition of the body of a deceased person under the provisions of sections 19a-270 and 54-102, (2) affect the powers and duties of the Chief Medical Examiner under the provisions of sections 19a-406 to 19a-408, inclusive, or (3) affect the making of anatomical gifts under the provisions of sections 19a-279a to 19a-279l, inclusive.

In Missouri, disposition of the body is handled by a majority vote of the next of kin, unless the person had previously designated someone in control or left written instructions with prepayment of the expenses. 22 M.R.S. § 2843-A (2007), "Custody of remains of deceased persons," mandates as follows:

1. DEFINITIONS. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. "At-need funeral arrangements" means funeral arrangements made after death.
B. "Custody and control" means the right to make all decisions, consistent with applicable laws, regarding the handling of a dead body, including, but not limited to, possession, at-need funeral arrangements, final disposition and disinterment.
C. "Estranged" means living in separate residences and having a relationship characterized by hostility or indifference.
D. "Next of kin" means a person having the following relationship to the subject, in the following order of priority:
1) The spouse;
1-A) A domestic partner. For purposes of this section, "domestic partner" means one of 2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other's welfare;
2) An adult son or daughter;
3) A parent;
4) An adult brother or sister;
5) An adult grandchild;
6) An adult niece or nephew who is the child of a brother or sister;
7) A maternal grandparent;
8) A paternal grandparent;
9) An adult aunt or uncle;
10) An adult first cousin; or
11) Any other adult relative in descending order of blood relationship.
E. "Subject" means the person whose remains are placed in the custody and control of another person pursuant to this section.
2. CUSTODY AND CONTROL GENERALLY. The custody and control of the remains of deceased residents of this State are governed by the following provisions.
A. If the subject has designated a person to have custody and control in a written and signed document, custody and control belong to that person.
B. If the subject has not left a written and signed document designating a person to have custody and control, or if the person designated by the subject refuses custody and control, custody and control belong to the next of kin.
C. If the next of kin is 2 or more persons with the same relationship to the subject, the majority of the next of kin have custody and control. If the next of kin can not, by majority vote, make a decision regarding the subject's remains, the court shall make the decision upon petition under subsection 4, paragraph D.
3. ESTRANGED SPOUSE OR DOMESTIC PARTNER. Notwithstanding subsection 2, if the surviving spouse or surviving domestic partner and the subject were estranged at the time of death, the spouse or domestic partner may not have custody and control of the subject's remains. In these cases, custody and control belong to the next of kin following the spouse or domestic partner.
4. COURT DETERMINATION. Notwithstanding other provisions of this section, the court of probate for the residence of the deceased may award custody and control to the person determined by the court most fit and appropriate to carry out the responsibilities of custody and control, and may make decisions regarding the subject's remains if those having custody and control can not agree. The following provisions apply to court determinations under this subsection.
A. Before the subject's death, the subject or the subject's legal representative may file a petition regarding custody and control of the subject's remains.
B. A relative of the subject may file a petition.
C. A person who claims and establishes through evidence that that person has or had a closer personal relationship to the subject than the next of kin may file a petition, if that person lived with the subject and was not in the employ of the subject or the subject's family.
D. If the next of kin is 2 or more persons with the same relationship to the subject, and the next of kin can not, by majority vote, make a decision regarding the subject's remains, 2 or more persons who have custody or control or a funeral director may file a petition asking the court to make a determination in the matter. The court shall consider the following in making its determination:
1) The reasonableness and practicality of the proposed arrangements;
2) The degree of the personal relationship between the subject and each of the 2 or more persons with custody and control;
3) The desires of the person or persons who are ready, able and willing to pay the costs of the arrangements;
4) The convenience and needs of other family and friends wishing to pay respect;
5) The expressed written desires of the subject; and
6) The degree to which the arrangements will allow maximum participation by all wishing to pay respect.
5. WISHES OF SUBJECT. If the subject has left written and signed instructions regarding funeral arrangements and disposal of the subject's remains, the person having custody and control shall abide by those wishes to the extent that the subject paid for those arrangements in advance or left resources for the purpose of carrying out those wishes.
6. EFFECT OF PAYMENT BY OTHERS. Except to the degree it must be considered by the court under subsection 4, paragraph D, the fact that a person other than the subject has paid or agreed to pay for all or part of arrangements does not give that person a greater right to custody and control than that person would otherwise have.
7. AUTHORITY OF PERSONAL REPRESENTATIVE. The personal representative of the estate of the subject does not, by virtue of being the personal representative, have a greater right to custody and control than the person would otherwise have.
8. IMMUNITY. A party who, in good faith, acts upon the instructions of the party having custody and control is not liable for having carried out those instructions.
9. APPLICATION. This section does not apply to the disposition of the remains of a deceased person under chapter 709. This section does not diminish or otherwise alter the authority of a medical examiner or other official authorized under chapter 711. This section does not alter the rights and obligations of the decedent's next of kin under Title 18-A.

NOTE THAT THE ABOVE STATUTES APPLY ONLY IN THEIR RESPECTIVE STATES.

References

  1. http://www.thetimesnews.com/news/one_8366___article.html/simpson_caskets.html
  2. See 7 A.L.R. 3d 747, 749-50 (1966); 54 A.L.R. 3d 1037 (1973).
  3. Alcor Life Extension Found. v. Mitchell, 9 Cal. Rptr. 2d 572 (1992) (allowing post-mortem cryonic suspension with a firm not recognized by the State of California).
  4. Enos v. Snyder, 63 P. 170, 171 (Cal. 1900) ("It is quite well established ... that, in the absence of statutory provisions, there is no property in a dead body; that it is not part of the estate of the deceased person; and that a man cannot by will dispose of that which after his death will be his corpse.").
  5. Cohen v. Guardianship of Cohen, 896 So. 2d 950, 953 (Fla. Dist. Ct. App. 2005) (citing Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950)), rev. denied, 911 So. 2d 792 (Fla. 2005) (holding that the decedent's wishes as explained in his will were not conclusive, and that testimony from the decedent's family as to his desire was allowed to overrule it).

Sources

  • Tracie M. Kester, NOTE: UNIFORM ACTS - Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law, 29 W. New Eng. L. Rev. 571 (2007).
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