Handling a Loved Ones’ Remains

While a person is alive, estate planning such as a will, health care power of attorney or “preneed” funeral contract can allow that person to specifically designate how they want their body to be laid to rest. Doing so can forestall family arguments about what to do with the body during the devastating period following the person’s death. A person can specify in advance the manner of disposition for their body, whether it be burial or cremation, and/or who they want to possess their remains. If the person does not specify the manner of disposition, they can also just appoint a possessor with the right to make that decision.

If, however, the deceased person did not specify in valid will or other contract who they wanted to have control of their remains, most states have their own laws that decree who has the right to control a deceased person’s remains. The person with default authority is listed first; if they are not alive, the right goes to the second person on the list, and so on.

In North Carolina, this ranking is as follows. If one of the following individuals is not mentally competent at the time of the decedent’s death, that person is treated as having died before the decedent.

1. The decedent’s surviving spouse
2. The majority decision of decedent’s children who are over 18 years of age, if they can be located after reasonable efforts
3. The decedent’s parents
4. The majority decision of the decedent’s siblings who are over 18, if they can be located after reasonable efforts
5. The decedent’s paternal grandparents
6. Paternal aunts and uncles
7. Maternal grandparents
8. Maternal aunts and uncles
9. If none of these people are still alive or reasonably locatable, a person who is unrelated to the decedent but exhibited special concern and care them and is willing and able to make decisions regarding what action to take with the body can receive possession.
10. 10. Any person who is willing to assume responsibility for the disposition of the remains.

If one of the people on this list is notified of their right to control the decedent’s remains and does not do anything to exercise that right within five days of being notified or ten days within the decedent’s death, whichever is first, it is presumed that the person waived their right and the right goes to the next person on the ranking.

If someone had arranged to have their body donated to science or research, a representative of the research institution has the right to control the person’s remains.

Sometimes fights can break out amongst family members over what should be done with a deceased relative’s remains or ashes. Unless the deceased person expressed wishes to the contrary, it can be difficult to legally dispute someone higher up on the above ranking’s control over the decedents remains. It is important to speak to a family law attorney in this instance.

Some parties agree out of court to divide a decedent’s ashes (or “cremains”). A common example of this is when the parents of a deceased child, now divorced, agree to divide the child’s ashes equally between the two. Some states, like Florida, have ruled that a person’s ashes are not property and are thus not subject to court-ordered division. This highlights the importance of attempting to solve the matter amicably first out of court.

There should not be any public health concerns with ashes, as cremation takes place at such high heat. North Carolina state law places a few restrictions on where ashes can be spread. A person can obviously choose to keep the ashes or spread them on their own private property. It is also permissible to scatter ashes on land that is public and uninhabited. If you are uncertain whether a plot of land is officially uninhabited, you can check with your county or city regulations and zoning rules before acting.

A person should request official permission before spreading ashes on federal land. In addition, the federal Clean Water Act mandates that cremated remains be spread at least three nautical miles away from land. The Act also governs the spreading of ashes in inland waters such as lakes or rivers. In addition, the Environmental Protection Agency does not allow the scattering of ashes at beaches or wading pools by the sea.

If you are facing what to do with a loved one’s remains or another family law right, it can be essential to have the guidance of an experienced attorney. The attorneys at Arnold & Smith, PLLC’s have been practicing in the family law courts in Charlotte, North Carolina and the surrounding areas for years. Contact us today for an initial consultation regarding your case.